Appeal by respondents from an order entered 3 April 2006 by
Judge Hugh B. Lewis in Mecklenburg County District Court. Heard in
the Court of Appeals 26 March 2007.
Kathleen Arundell Widelski, for petitioner-appellee
Mecklenburg County Department of Social Services, Youth and
Family Services Division.
Jeannie Brown for appellee Guardian ad Litem.
Thomas B. Kakassy for respondent-appellant mother.
Richard E. Jester for respondent-appellant father.
Respondent-mother and respondent-father appeal from a
permanency planning order which ceased reunification efforts and
placed their minor child, D.D., in the guardianship of her maternal
Mecklenburg County Department of Social Services, Youth and
Family Services Division (YFS) filed a juvenile petition and
obtained non-secure custody of newborn D.D. in April 2005, upon a
finding by the court that D.D. was exposed to a substantial risk
of physical injury or sexual abuse in the parents' custody. The
petition alleged that YFS had been granted custody of respondent-mother's three older children in juvenile cases 2004 J 465-67,
based on their exposure in her home to substance abuse and
inappropriate caretakers[,] including respondent-father. The
petition further alleged that respondent-father was a registered
sex offender, was living with respondent-mother, and had made
drugs in her home in the presence of respondent-mother's children.
After a hearing held in July of 2005, the district court
adjudicated D.D. a neglected and dependent juvenile. The court
took notice of its 12 July 2004 adjudicatory and dispositional
order entered against respondent-mother in 2004 J 465-67, which
found that respondent-father posed a risk to respondent-mother's
children and ordered respondent-mother to distance herself from
individuals that would place her children at risk. The court
found that respondent-mother allowed respondent-father to cook
drugs in her home in the presence of D.D.'s siblings, and that one
of the children had obtained an ecstacy pill that respondent-mother
was holding for respondent-father. It found that respondent-father
was a registered sex offender and spent seven and one-half years in
prison after pleading guilty to a sex offense, but was in total
denial of his responsibility for the crime. He told YFS that he
was into 'drugs not sex.' Respondent-father also had pending
criminal charges for drug possession, drug trafficking, and failure
to register as a sex offender. The court found that respondent-
mother was unable to appreciate the dangers to her children if
they are placed in this type of criminal environment and saw no
need to change her lifestyle in order to keep her children fromharm. Moreover, although respondent-mother had reported ending her
relationship with respondent-father, her parenting capacity
evaluator found it apparent that their relationship was ongoing.
The court found respondent-mother's claim not credible, noting that
respondent-father continued to pay her bills and regularly visited
her residence. The court noted respondent-mother's statement on 8
July 2005 that 'other people could not tell her who she can and
cannot be with.'
In a dispositional order entered 7 September 2005, the court
ordered respondent-mother to comply with the case plan developed in
2004 J 465-67, and emphasized her need to choose between her child
and [respondent-father]. Respondent-father's case plan required
him to complete a FIRST assessment and comply with its
recommendations, obtain a parenting capacity evaluation, submit to
random drug screens, obtain appropriate housing and employment,
complete parenting classes and work with a parenting educator,
maintain regular visits with the child, report his address to the
North Carolina sex offender registry, obtain a sex offender
evaluation and follow its recommendations. The court awarded
supervised visitations to both parents and established a permanent
plan of reunification.
Respondent-father obtained a FIRST assessment, but
recommendations were postponed pending his sex offender assessment.
He completed parenting classes. The psychologist who performed his
sex offender assessment, Dr. William M. Tyson (Dr. Tyson), found
that he had a long history of substance abuse and dependence,violence, and sexual misconduct [resulting] in multiple criminal
charges and multiple incarcerations. Dr. Tyson reported that
respondent-father was dismissive of the assault charges, denied
committing the sexual offense, and was unable to grasp the meaning
or intention of treatment or articulate a reasonable plan for
care of his child. While noting that respondent-father might
benefit from treatment if he were to [ac]knowledge that there was
a problem in his behavior or adaptation[,] Dr. Tyson concluded
that he was best viewed as untreated for sex offending (as well as
substance abuse, violence, and a general criminal orientation).
Respondent-father's FIRST assessment was completed on 30
November 2005. It noted that he tested positive for and admitted
to marijuana use. Respondent-father agreed to begin substance
abuse treatment at McLeod by 2 December 2005, and to complete a
mental health assessment at BHC-Randolph scheduled for 20 December
2005. Finally, he agreed to obtain domestic violence treatment at
NOVA after completing substance abuse treatment.
In a review order entered 1 December 2005, the district court
found that respondent-mother had completed parenting classes but
continued to have contact with respondent-father, despite the
termination of her parental rights as to D.D.'s three siblings.
Respondent-father was attending parenting classes but lacked stable
housing. Both parents were visiting the child. The court
maintained D.D.'s placement with her maternal grandmother and
ordered YFS to develop a case plan for respondent-mother. YFS filed a court summary on 17 February 2006, reporting
D.D.'s satisfactory development in her placement with the maternal
grandmother. The summary noted that respondent-father had yet to
begin substance abuse treatment at McLeod, had been found by Dr.
Tyson to be unsuited for sex offender treatment, had not obtained
stable employment, and claimed to be living with his brother, who
had a very lengthy criminal history. At the time of its report,
YFS had not received respondent-father's completed parental
capacity evaluation. He had been to court in January and February
of 2006 on charges of possession with intent to sell or deliver
marijuana and cocaine, failure to register as a sex offender, and
trafficking in cocaine. His bond was revoked on 19 January 2006.
The YFS court summary reported that respondent-mother had
completed her FIRST and mental health assessments and parenting
classes, and was receiving individual counseling. She had a
negative drug screen and was determined not to be in need of
services for substance abuse or domestic violence. She had a part-
time job and was actively looking for full-time employment.
However, the report noted that respondent-mother had not
contributed any money to a savings account set up for D.D. She
advised YFS that she lost her section 8 housing on 31 January 2006,
and was living in a hotel while looking for additional section 8
housing. YFS further advised the court that respondent-mother
denies being with [respondent-father] but she was seen at the
supervised visitation on two occasions with [him] since the last
hearing. Attached to the summary were reports from social workassistant Tina Nichols, stating that respondent-father arrived with
respondent-mother at visitations at Walton Plaza on 19 January 2006
and 2 February 2006. Respondent-mother waited in the car for
respondent-father while he visited with D.D. On 2 February 2006,
respondent-mother informed Nichols that she was moving from one
residence to another and made reference to [respondent-father]
helping her out. Nichols reported receiving information on 8
February 2006 that respondent-mother was living with respondent-
father in a hotel room. When asked about this allegation, she
denied it. Citing respondents' lack of consistency and honesty in
this case and D.D.'s ten-month foster placement in a safe,
protected environment with her maternal grandmother[,] YFS
recommended ceasing reunification efforts and changing the
permanent placement plan to guardianship with the grandmother.
The district court held a permanency planning hearing on 3
March 2006. N.C. Gen. Stat. § 7B-907 (2005). Although the parties
did not introduce testimony at the hearing, the court heard
arguments from counsel and the guardian ad litem and received into
evidence and considered the YFS Court Summary dated March 3,
2006, all attachments, reasonable efforts reports, FIRST report and
[the] Parenting Capacity Evaluation for [respondent-father.] The
court also questioned D.D.'s maternal grandmother about her
understanding of and the willingness to assume the responsibilities
of guardianship. Based on the information provided at the hearing,
the court entered an order relieving YFS of further efforts to
reunify D.D. with respondent-parents and awarding guardianship ofthe child to her maternal grandmother. Both respondents appealed
from the order.
As an initial matter, we note YFS's inclusion of an
Assignment of Error by Appellee in the record on appeal and its
brief to this Court. Although N.C.R. App. P. 10(d) allows an
appellee to cross-assign error, we find YFS's purported assignment
of error unrelated to the 3 April 2006 permanency planning review
order that is the subject of the instant appeal. Instead, YFS
seeks to challenge a subsequent 25 August 2006 order denying its
motion to dismiss respondent-mother's appeal. YFS did not appeal
from -- or otherwise seek appellate review of -- the 25 August 2006
order. Accordingly, neither this order nor YFS's assignment of
error is not properly before this Court. Inasmuch as the record
does not reflect proper service of the 3 April 2006 permanency
planning review order upon respondent-mother in accordance with
N.C.R. Civ. P. 58, her notice of appeal is not untimely on its face
such as to deprive this Court of jurisdiction. See N.C. Gen. Stat.
§ 7B-1001(c) (2005).
Before we address respondents' arguments, we note the
following general principles that guide our review of the district
court's order. A trial court's findings of fact are binding on
appeal if they are supported by any competent evidence. In re
H.W., 163 N.C. App. 438, 443, 594 S.E.2d 211, 213, disc. review
denied, 358 N.C. 543, 599 S.E.2d 46 (2004). A finding that is not
the subject of a properly briefed assignment of error is also
binding. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731(1991); see also N.C.R. App. P. 10(a) and N.C.R. App. P. 28(b)(6).
A trial court's conclusions of law are reviewed de novo. In re
J.J., J.J., J.J., ___ N.C. App. ___, ___, 637 S.E.2d 258, 260
(2006). Accordingly, our task in reviewing a permanency planning
order is to determine whether the district court's contested
findings of fact are supported by competent evidence, and whether
any disputed conclusions of law are supported by its findings of
fact. See In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134,
Respondent-mother first challenges the permanency planning
order's Finding of Fact 1, which reads as follows:
On July 8, 2005, the juvenile was adjudicated
neglected and dependent as to the mother.
. . .
The adjudicatory hearing began on July 1, 2005
and concluded on July 8, 2005. At the
adjudication, the Court found that it was
apparent that the mother was still involved
with [respondent-father]. As of July 8, 2005,
the mother testified that she broke off her
relationship with [him] two - three months
before the child was born. The Court did not
find [her] testimony credible. The mother
still loves [respondent-father]. As of July
8, 2005, the mother indicated that other
people could not tell her who she can and
cannot be with. . . .
Further, at the adjudicatory hearing the Court
found that the father is in total denial of
his responsibility surrounding the sex offense
and drug charges. The mother is not able to
appreciate the dangers to her children if they
are placed in this type of criminal
environment. . . . The mother minimizes and
shifts blame to others relating to her
Respondent-mother characterizes the court's finding as not a
finding of fact, but a recitation of evidence previously found at
a previous hearing. She notes that the court heard no testimony
at the permanency planning hearing, and that the written materials
submitted to the court contained only conclusory sentences about
[her] living situation and her relationship with the father. She
contends that the court erred by basing its findings on
bootstrapped hearsay from the July 2005 adjudicatory hearing.
She further avers that D.D. had never been shown to be a neglected
juvenile within the definition of N.C. Gen. Stat. § 7B-101(15)
We find no merit to this claim. The district court was free
to take judicial notice of both prior proceedings and prior orders
entered in this cause. See, e.g, In re M.N.C.
, 176 N.C. App. 114,
120, 625 S.E.2d 627, 632 (2006) (quoting In re Isenhour
, 101 N.C.
App. 550, 553, 400 S.E.2d 71, 73 (1991)); In re S.N.H. & L.J.H.
___ N.C. App. ___, ___, 627 S.E.2d 510, 515 (2006) (citing In re
, 172 N.C. App. 1, 16, 616 S.E.2d 264, 273 (2005)); In re Ivey
156 N.C. App. 398, 402, 576 S.E.2d 386, 390 (2003). The court's
Finding of Fact 1 recounts of the evidence and findings which led
to its adjudication of neglect and dependency on 23 August 2005.
We find nothing improper in such a summary, which provides a
context for the court's additional findings and conclusions.
Therefore, we overrule this assignment of error.
To the extent respondent-mother seeks review of the
adjudication of neglect entered on 23 August 2005, her claim is notproperly before this Court. She did not appeal from the
adjudication of dependency and neglect following the court's entry
of its dispositional order on 7 September 2005. See
Stat. § 7B-1001(a)(3). The adjudication is thus res judicata
cannot be revisited here. See Kelly v. Kelly
, 167 N.C. App. 437,
443, 606 S.E.2d 364, 369 (2004) (quoting Johnson v. Johnson
, 7 N.C.
App. 310, 313, 172 S.E.2d 264, 266 (1970)). The district court was
not required to make a second finding of neglect in ceasing
reunification efforts under N.C. Gen. Stat. § 7B-507(b) (2005).
Furthermore, respondent-mother's claim is not supported by her
assignment of error, which raises only the evidentiary support for
Finding of Fact 1 in the permanency planning order. See
App. P. 10(a).
Respondent-mother next assigns error to Finding of Fact 4, on
the ground that it is actually a conclusion of law and is not
supported by properly found facts. Finding of Fact 4 reads, in
pertinent part, as follows:
4. It is not possible for the juvenile to be
returned home immediately or within 6
months nor is it in the [j]uvenile's best
interest to return home because: The
father has been convicted of 2nd degree
sex offense. . . . Dr. Tyson found that
the father can only be considered into a
sex offender recovery program if he
seemed committed. The father was not
admitted to the program. . . . The
father appeared in criminal court in
February 2006 on charges of failure to
register as a sex offender, trafficking
cocaine, and possession with intent to
sell/distribute marijuana. The mother
does not have stable housing. The mother
has not contributed any money to a
savings account for D[.D.] as required inthe Family Services Agreement. The
mother has been seen on at least two
occasions with the father since the last
In challenging this finding, respondent-mother asserts that she has
never been alleged or shown to have injured D.D., has substantially
complied with her case plan, and has denied an ongoing relationship
with respondent-father. Citing our decision in In re D.L., A.L.
166 N.C. App. 574, 583, 603 S.E.2d 376, 382 (2004), respondent
mother contends that DSS should have presented live evidence to
justify its life-changing request to cease reunification efforts.
The procedures for a permanency planning hearing are set forth
in N.C. Gen. Stat. § 7B-907. Where the district court elects to
maintain the child in a placement outside of the parent's home, the
statute requires the court to consider and make written
findings on several criteria, including the following: (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[.] N.C. Gen.
Stat. § 7B-907(b)(1); see also In re Harton
, 156 N.C. App. 655,
660, 577 S.E.2d 334, 337 (2003) ([s]ection 7B-907(b) requires a
trial court to make written findings on all of the relevant
criteria as provided in the statute). The court's fact-finding
must be sufficient to demonstrate the 'processes of logical
reasoning' by which the individual evidentiary facts led the court
to 'find the ultimate facts essential to support the conclusions
of law.' In re J.S.
, 165 N.C. App. 509, 511, 598 S.E.2d 658, 660
(2004) (quoting In re Harton
, 156 N.C. App. at 660, 577 S.E.2d at337). The court may not delegate its fact-finding responsibilities
by simply incorporating a DSS court summary into its order. In re
, 166 N.C. App. at 582, 603 S.E.2d at 382 (quoting In re
, 156 N.C. App. at 660, 577 S.E.2d at 337). Likewise, we
have held that the department's court summary, standing alone, is
insufficient to constitute competent evidence to support the trial
court's findings of facts at a permanency planning proceeding.
. at 583, 603 S.E.2d at 382.
Here, the district court's Finding of Fact 4 begins by
tracking the language of N.C. Gen. Stat. § 7B-907(b)(1) and thus
clearly represents the district court's assessment of this
statutory factor. A determination under N.C. Gen. Stat. § 7B-
907(b)(1), that [i]t is not possible for the juvenile to be
returned home . . . within 6 months nor is it in the [j]uvenile's
best interest to return home is in the nature of a legal
conclusion, reached through the application of judgment to the
objective facts and circumstances. See In re Helms
, 127 N.C. App.
505, 511, 491 S.E.2d 672, 676 (1997) (best interest determinations
are conclusions of law because they require the exercise of
judgment); see also In re M.N.C.
, 176 N.C. App. at 122, 625 S.E.2d
at 632 (citation omitted) ('if a finding of fact is essentially a
conclusion of law it will be treated as a conclusion of law which
is reviewable on appeal'). Rather than a pure conclusion of law,
however, the paragraph denominated Finding of Fact 4 includes both
a conclusion of law and multiple specific findings of fact in
support of this conclusion. To the extent respondent-mother assigns error to the court's
findings on evidentiary grounds, we find no merit to her claim. As
noted above, findings of fact that are supported by any competent
evidence are binding on appeal. In re H.W.
, 163 N.C. App. at 443,
594 S.E.2d at 213. At a permanency planning hearing, competent
evidence may include any evidence, including hearsay . . . , that
the court finds to be relevant, reliable, and necessary to
determine the needs of the juvenile and the most appropriate
disposition. N.C. Gen. Stat. § 7B-907(b). Moreover, consistent
with N.C. Gen. Stat. § 7B-901 (2005), [t]he written reports of
social workers and psychiatrists, and other written material in the
court's file are competent evidence in a dispositional or review
hearing in juvenile cases. In re Shue
, 63 N.C. App. 76, 79, 303
S.E.2d 636, 638 (1983), affirmed as modified by
, 311 N.C. 586, 319
S.E.2d 567 (1984). While we have held that the YSF court summary
cannot be the sole evidentiary basis for the court's findings, see
In re D.L.
, 166 N.C. App. at 582, 603 S.E.2d at 382 (quoting In re
, 156 N.C. App. at 660, 577 S.E.2d at 337), the court did not
rely exclusively on the summary here. Most of the particularized
findings in Finding of Fact 4 concern respondent-father's criminal
activities, lack of stable employment and housing, and status as an
untreated sex offender. These findings find support in respondent-
father's sex offender assessment and parenting capacity evaluation,
as well as administrative records from the Administrative Office of
the Courts. The finding that respondent-mother was seen on at
least two occasions with the father since the last hearing wassupported by the written reports of social work assistant Nichols,
who observed respondent-father's visitations with D.D. on 19
January 2006 and 2 February 2006. Nichols' notes further describe
an exchange with respondent-mother on 2 February 2006, during which
she acknowledged that respondent-father was helping her move.
Moreover, respondent-mother's counsel conceded that she had made no
contribution to D.D.'s savings account and was in between housing
at the time of the hearing.
We further find the court's particularized findings sufficient
to support its ultimate finding and conclusion under N.C. Gen.
Stat. § 7B-507(b)(1) that returning D.D. to respondent-mother's
home within the next six months was not possible and was contrary
to the best interests of the child. See generally In re L.B.
N.C. App. ___, ___ S.E.2d ___ (No. 06-483 filed 2 January 2007)
(addressing sufficiency of findings under N.C. Gen. Stat. § 7B-
907(b)); In re Anderson
, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602
(2002). Specifically, the court noted respondent-mother's failure
to obtain stable housing or to discontinue her relationship with
respondent-father, as previously ordered and required by her case
plan. The court's findings further reflect respondent-father's
failure to address the issues which were found to place respondent-
mother's children at a significant risk of harm. Accordingly, we
overrule this assignment of error.
In her next assignment of error, respondent mother claims as
follows: The trial court erred in its Order that the permanent
plan for the child D.D. change to guardianship and in grantingguardianship to the maternal grandmother, T[.H.], in that the order
is contrary to the law and the facts
. (Emphasis added.) The
vague and all-compassing assertion that a particular ruling is
contrary to the law and the facts does not comply with N.C.R. App.
P. 10(c)(1), which requires that [e]ach assignment of error shall,
so far as practicable, be confined to a single issue of law; and
shall state plainly, concisely and without argumentation the legal
basis upon which error is assigned. Id
. See Wetchin v. Ocean
., 167 N.C. App. 756, 759, 606 S.E.2d 407, 409 (2005)
(quoting State v. Kirby
, 276 N.C. 123, 131, 171 S.E.2d 416, 422
(1970)) ('[t]his assignment -- like a hoopskirt -- covers
everything and touches nothing').
Because respondent-mother's assignment of error fails to
identify the issue to be argued on appeal, it is subject to
dismissal. See Calhoun v. WHA Med. Clinic, PLLC
, ___ N.C. App.
___, ___, 632 S.E.2d 563, 574 (2006); May v. Down E. Homes of
., 175 N.C. App. 416, 418, 623 S.E.2d 345, 346
(2006) (citation omitted) (finding the appellant's 'broad, vague,
and unspecific' assignments of error insufficient to preserve any
issue for appeal); Walker v. Walker
, 174 N.C. App. 778, 782-83, 624
S.E.2d 639, 642 (2005) (dismissing assignments of error claiming
that each finding or conclusion was 'erroneous as a matter of
law'), disc. review denied
, 360 N.C. 491, 632 S.E.2d 774 (2006).
Moreover, once this Court determines that an appeal is flawed for
failure to comply with Rule 10(c)(1), this Court is not free to
address an issue not raised or argued by the appellant: 'It is notthe role of the appellate courts . . . to create an appeal for an
appellant.' In re A.E., J.E.
, 171 N.C. App. 675, 680, 615 S.E.2d
53, 57 (2005) (quoting Viar v. N.C. Dep't of Transp
., 359 N.C. 400,
402, 610 S.E.2d 360, 361 (2005)).
In her briefed argument in support of this assignment of
error, respondent-mother claims the court failed to make sufficient
findings under N.C. Gen. Stat. § 7B-907(b)(1) to demonstrate why
it is not in [D.D.]'s best interest to return home within the next
six months. She notes that most of the court's written findings
addressed respondent-father's activities. She also reiterates that
the court heard no live testimony at the hearing. As for the
court's findings that she lacked stable housing and had been seen
twice with respondent-father since the last review hearing,
respondent-mother avers that they were based on unreliable hearsay
contained in the YFS court summary. She deems irrelevant the
finding that she failed to contribute to D.D.'s savings account.
We note, however, that payment of child support was a component of
respondent-mother's YFS case plan.
In addition to the facts included in Finding of Fact 4, the
court made the following evidentiary findings germane to the factor
set forth in N.C. Gen. Stat. § 7B-907(b)(1):
The father has been convicted of 2nd degree
sex offense. . . . Dr. Tyson found that the
father can only be considered into a sex
offender recovery program if he seemed
committed. The father was not admitted to the
program. . . . The father has not returned to
McCleod to follow through with [substance
abuse] treatment. The mother does not have
stable housing [and] continues to be seen with
. . .
The juvenile has been placed with her maternal
grandmother since May 2005. . . .
. . .
The father continues to show recent criminal
activity related to drug trafficking. The
mother does not have a permanent residence.
There is evidence that the mother and father
continue in a relationship. The mother has
stated in previous hearings before the Court
that she will continue in a relationship with
the child's father.
Respondent-mother offered no evidence of progress in obtaining
stable housing or of disassociating herself from respondent-father.
Moreover, the documents relied upon by the district court were
competent evidence at a permanency planning hearing, see
Stat. §§ 7B-901, -907(b), and were thus sufficient to support the
individual evidentiary facts found by the court. In re Shue
N.C. App. at 79, 303 S.E.2d at 638.
As explained above, we believe the court's particularized
findings demonstrate why the court found it contrary to D.D.'s best
interests to be returned home to respondent-mother within the next
six months. In addition to her lack of stable housing and her
failure to contribute to D.D.'s savings account as provided in her
case plan, the court's findings reflect respondent-mother's ongoing
refusal to eliminate the risk of harm to D.D. created by exposure
to respondent-father. Despite the clear directive in the 7
September 2005 dispositional order that she choose between
respondent-father and her child, respondent-mother had yet to
correct the primary factor that led to D.D.'s adjudication ofdependency and neglect on 23 August 2005, as well as the
termination of her parental rights to D.D.'s three siblings in
November of 2005. See In re L.B.
, ___ N.C. App. ___, ___ S.E.2d
___ (No. 06-483 filed 2 January, 2007); In re S.N.
, ___ N.C. App.
___, ___, 636 S.E.2d 316, 321 (2006)
([t]he respondent father
effectively chose S.N.'s mother over S.N.)
(citing In re Huff
N.C. App. 288, 299, 536 S.E.2d 838, 845 (2000)); cf In re E.N.S.
164 N.C. App. 146, 151, 595 S.E.2d 167, 170 (considering prior
neglect of one child as evidence of the respondent's ongoing
neglect of child's siblings), disc. review denied
, 359 N.C. 189,
606 S.E.2d 903 (2004).
To the extent respondent-mother raises the issue in her brief
to this Court, we hold that the district court made sufficient
findings under N.C. Gen. Stat. § 7B-907(c) to support its award of
guardianship to the maternal grandmother as D.D.'s permanent plan
of care. In addition to finding that D.D. had been placed with her
grandmother since May of 2005, the court questioned the grandmother
in open court at the hearing. Based on her responses, the court
found that she understood and was willing to accept the
responsibilities of guardianship, including the financial
requirements of caring for the child. See
N.C. Gen. Stat. § 7B-
903(a)(2)(c) (2005) ([i]f the court finds that [a] relative is
willing and able to provide proper care and supervision in a safe
home, then the court shall order placement of the juvenile with the
relative unless the court finds that the placement is contrary to
the best interests of the juvenile); see also
N.C. Gen. Stat. §7B-907(c). Finally, we note that the court made the findings
required to cease reunification efforts under N.C. Gen. Stat. § 7B-
[E]fforts to reunite would be futile and would
be inconsistent with the juvenile's health,
safety, and need for a safe[,] permanent home
within a reasonable period of time; and
[A] court of competent jurisdiction has
terminated involuntarily the parental rights
of the mother to her three children.
N.C. Gen. Stat. § 7B-507(b)(1), (3). Accordingly, we overrule
this assignment of error.
Because respondent-mother does not address the remaining joint
assignments of error included in the record on appeal, she is
deemed to have abandoned them pursuant to N.C.R. App. P. 28(b)(6).
Respondent-father first claims that he was denied effective
assistance of counsel by his court-appointed attorney.
Specifically, he faults counsel for failing to object to the
district court's lack of personal jurisdiction due to petitioner's
failure to serve the juvenile petition and summons upon him.
A parent has a right to counsel in termination of parental
rights proceedings. In re J.A.A. & S.A.A.
, 175 N.C. App. 66, 74,
623 S.E.2d 45, 50 (2005). To prevail in a claim for ineffective
assistance of counsel, respondent must show: (1) h[is] counsel's
performance was deficient or fell below an objective standard of
reasonableness; and (2) her attorney's performance was so deficient
she was denied a fair hearing. Id
. Service of process in a juvenile proceeding involving abuse,
neglect, and dependency is governed by N.C.R. Civ. P. 4 and N.C.
Gen. Stat. § 7B-406(a) (2005), which provides that [i]mmediately
after a petition has been filed alleging that a juvenile is abused,
neglected, or dependent, the clerk shall issue a summons to the
parent . . . requiring [him] to appear for a hearing at the time
and place stated in the summons. We have previously held that
'process must be issued and served in the manner prescribed by
statute' in order for the court to obtain jurisdiction over a
respondent. In re A.J.M.
, ___ N.C. App. ___, ___, 630 S.E.2d 33,
37 (2006) (citations omitted). Nevertheless, a defendant who
makes a general appearance without objection waives the issue of
insufficiency of service of process and submits to the personal
jurisdiction of the court. Id
. (citing N.C. Gen. Stat. § 1-75.7
(2005)). '[A]ny act which constitutes a general appearance
obviates the necessity of service of summons and waives the right
to challenge the court's exercise of personal jurisdiction over the
party making the general appearance.' In re A.B.D.
, 173 N.C. App.
77, 83, 617 S.E.2d 707, 712 (2005) (quoting Lynch v. Lynch
N.C. 189, 197, 274 S.E.2d 212, 219 (1981)).
The record shows that a juvenile summons was issued upon
respondent-father on 27 April 2005. The initial seven-day order
entered by the district court on 3 May 2005 includes findings that
respondent-father was present at the hearing, was personally served
with the process on 3 May 2005, and acknowledged paternity in open
court. The findings that respondent-father was personally servedwith the summons in this cause on 3 May 2005 is also contained in
the order adjudicating D.D. a neglected and dependent juvenile
entered on 23 August 2005. Because respondent-father did not
appeal from the dispositional order entered on 7 September 2005,
N.C. Gen. Stat. § 7B-1001(3), he is bound by the finding that
he was personally served with process on 3 May 2005. Kelly
N.C. App. at 443, 606 S.E.2d at 369. Having been properly served,
he cannot fault his counsel for failing to object to the court's
jurisdiction on this ground.
We further find no indication that counsel's failure to
contest service of process upon respondent-father undermined the
fairness of these proceedings. Respondent-father was present at
the initial seven-day hearing held 3 May 2005, at which time
counsel was appointed for him. Both respondent-father and counsel
appeared at each subsequent hearing in this cause. We are
unpersuaded by respondent-father's suggestion that an objection by
counsel would have generated more time for [him] to work on his
alleged case plan lacks any support in the record. Accordingly,
we overrule this assignment of error.
In support of his second argument on appeal, respondent-father
lists fourteen corresponding assignments of error. We will address
each portion of his argument in the order presented in his
Respondent-father claims generally that YFS's conduct in this
cause and the procedures used by the district court violated the
constitutional requirements that he be given fundamentally fairprocesses. We note, however, that respondent-father failed to
raise his constitutional claim at the permanency planning hearing.
It is well-established that constitutional issues not raised in the
trial court may not be raised on appeal. N.C.R. App. P. 10(b)(1);
State v. Lloyd
, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001);
State v. Cummings
, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000).
Respondent-father also faults the district court for basing
its findings of fact on documents that were not formally offered
and received into evidence at the hearing. Although the court
states in its order that it received into evidence and considered
the YFS Court Summary dated March 3, 2006, all attachments,
reasonable effort reports, FIRST report and [the] Parenting
Capacity Evaluation for [respondent-father,] he avers that the
hearing transcript contradicts the court's claim.
In In re Ivey
, 156 N.C. App. at 402, 576 S.E.2d at 389-90, we
held that the district court could rely upon reports submitted by
DSS and the guardian ad litem as evidence at a permanency planning
proceeding, even though the reports were not formally admitted into
evidence at the hearing. Absent a claim that DSS or the guardian
ad litem failed to follow the Local Rules of Juvenile Court or
failed to provide the documents to [respondents'] counsel[,] the
documents were competent evidence under N.C. Gen. Stat. §§ 7B-901
and -907(b). Id
. at 403, 576 S.E.2d at 390; accord In re M.J.G.
168 N.C. App. 638, 648-49, 608 S.E.2d 813, 819 (2005).
Here, as in Ivey
, the lack of a formal tender of documentary
evidence by YFS did not bar the court from considering thisevidence under N.C. Gen. Stat. § 7B-907(b). At the beginning of
the permanency planning hearing, YFS's counsel advised the court as
The Department has filed a court summary as
well as a reasonable efforts report and there
are attachments to those reports, Your Honor,
including the [FIRST] report, McLeod report
and I believe there are also notes from the
social work assistant who has been observing
visits with the child. Also I would add today
the Department did receive a parenting
capacity evaluation for the father[.] All the
parties have been provided with a copy of that
(inaudible) filed motion.
The guardian ad litem concur[red] 100 percent with YFS's
recommendations to the court, endorsed its excellent report and
acknowledged her receipt of respondent-father's parenting capacity
evaluation. When asked by the court for his response, counsel for
respondent-father opposed the recommendation of guardianship but
did not object to the reports or claim a lack of notice or any
violation of the local rules. Moreover, although respondent-father
did not introduce any evidence to rebut the reports, the court did
not prevent or discourage him from doing so. See In re Shue
N.C. at 597, 319 S.E.2d at 574 (holding that the trial court erred
by not hearing all of the evidence which the mother was prepared to
present to the court at the review hearing). Finally, the court
expressly announced its acceptance of the documents submitted by
YFS. Accordingly, we find no merit to this claim. See In re
, 168 N.C. App. at 648-49, 608 S.E.2d at 819.
Following his initial objections to the procedures used by the
district court, respondent-father challenges many of the individualfindings as not proved by clear and convincing evidence at the
hearing. Respondent-father also challenges certain of the court's
findings on other grounds. Before considering these arguments in
the order presented, we again note that [a]ppellate review of a
permanency planning order is limited to whether there is competent
evidence in the record to support the findings and the findings
support the conclusions of law. In re J.C.S.
, 164 N.C. App. 96,
106, 595 S.E.2d 155, 161 (2004) (quoting In re Eckard
, 148 N.C.
App. 541, 544, 559 S.E.2d 233, 235 (2002)). Notwithstanding
respondent-father's urging of a clear and convincing evidence
standard, the trial court's findings of fact are conclusive on
appeal if they are supported by any competent evidence[,] even if
there is evidence to the contrary. Id
. at 105 n.3, 595 S.E.2d at
160 n.3 (citing In re Weiler
, 158 N.C. App. at 477, 581 S.E.2d at
137)); In re Oghenekevebe
, 123 N.C. App. 434, 439, 473 S.E.2d 393,
Respondent-father presents a single challenge to Findings of
Fact 2, 3, and 4, casting them as simply recitations from the
reports submitted by YFS, rather than independent judicial findings
of fact. He repeats his assertion that the reports submitted to
the court are not evidence.
In addition to explicitly incorporating the YFS court summary
by reference, Findings of Fact 2 and 3 include the following
specific findings related to respondent-father:
2. The following progress has been made
towards alleviating or mitigating the
problems that necessitated placement:
. . . The father completed a FIRSTAssessment and completed parenting
classes. . . .
3. The following remains to be accomplished
before reunification can be achieved:
. . . The father has been convicted of
2nd degree sex offense. He had a sex-
offender assessment in October 2005;
however, Dr. Tyson found that the father
can only be considered into a sex
offender recovery program if he seemed
committed. The father was not admitted
to the program. The father does not have
stable, full-time employment. The father
lives with his brother who has a lengthy
criminal history. The father appeared in
criminal court in January 2006 on charges
of Possession [with Intent to
Sell/Distribute Cocaine and Marijuana.
The father appeared in criminal court in
February 2006 on]
(See footnote 1)
charges of failure to
register as a sex offender, trafficking
cocaine, and possession with intent to
sell/distribute marijuana. The father
has not returned to McCleod to follow
through with treatment.
In Finding of Fact 4, the court repeats these facts from Finding of
Fact 3 as support for its finding that [i]t is not possible for
the juvenile to be returned home immediately or within 6 months nor
is it in [her] best interest to return home[.]
As stated in our review of respondent-mother's appeal, the
documentary evidence submitted to the court was competent evidence
sufficient to support findings of fact at a permanency planning
hearing. See In re M.J.G.
, 168 N.C. App. at 648-49, 608 S.E.2d at
819 (citing In re Ivey
, 156 N.C. App. at 402, 576 S.E.2d at
389-90). The YFS court summary, AOC records, prior orders in thiscause, and respondent-father's FIRST progress report, sex offender
assessment, and parenting capacity evaluation support each of the
facts found by the court in Findings of Fact 2-4. Moreover, the
court's particularized evidentiary findings are sufficient to
support its conclusion that return of D.D. to respondent-father's
home within the next six months was neither possible nor in her
best interest. Accordingly, we overrule his assignments of error
related to Findings 2-4.
To the extent respondent-father denies committing the second
degree sex offense and insists that his conviction for this offense
has no affect on his ability to parent D.D., we note that his
guilty plea was competent evidence that he committed the offense.
See Camalier v. Jeffries
, 113 N.C. App. 303, 312-13, 438 S.E.2d
427, 433 (1994) (citing Boone v. Fuller
, 30 N.C. App. 107, 109, 226
S.E.2d 191, 193 (1976)). Respondent-father's unwillingness to
acknowledge his responsibility for the crime was found by Dr. Tyson
to preclude necessary sex offender treatment, as noted in the
court's findings. Moreover, Dr. Stephen C. Strzelecki (Dr.
Strzelecki) found in respondent-father's parenting capacity
evaluation that his illegal activity and poor judgement were
significant obstacles to his being an effective parent and were
consistent with his proclivity for not taking responsibility and
being accountable for his own actions.
Respondent-father asserts that the evidence did not support
the portion of Finding of Fact 5 that the juvenile's return home
is unlikely within 6 months[.] He describes his progress with thecase plan as consistent and ongoing and suggests that Dr.
Strzelecki found him preparing rapidly to become an effective
parent to D.D.
We find no merit to this claim. As noted above, Finding of
Fact 4 included the court's conclusion that it was not possible for
D.D. to be returned home within six months under N.C. Gen. Stat. §
7B-507(b)(1). This finding was supported, inter alia
, by evidence
of respondent-father's involvement in criminal activity, his
inappropriate living arrangement, lack of stable employment,
unwillingness to submit to sexual offender treatment, and failure
to begin substance abuse treatment, and other components of his
FIRST program. Respondent-father's parenting capacity evaluation
included Dr. Strzelecki's findings that the substantial changes
needed for him to care for D.D. would be very difficult and would
require significant motivation by an individual given a life-
long pattern of inappropriate behaviors and actions[.] While
respondent-father appeared cooperative in completing tasks
required by [YFS], Dr.Strzelecki agreed with Dr. Tyson that he
displayed no desire for true behavior change and no concern
about the possible consequences of his involvement in the legal
system on his life, let alone the lives of his children.
In Finding of Fact 5, the court addressed the factor set forth
in N.C. Gen. Stat. § 7B-907(b)(2), [w]here 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[.] The court found that guardianship with D.D.'smaternal grandmother should be established, inasmuch as it was not
possible to return the child to her parents, and the child had been
placed with her maternal grandmother since May of 2005. The record
reflects D.D.'s development as a happy and healthy baby while in
the care of her grandmother, who is a licensed foster care
provider. Notwithstanding respondent-father's completion of
parenting classes and a parenting capacity evaluation, the court's
finding was consistent with the evidence that respondent-father was
not a realistic placement option for the foreseeable future. We
note the court's additional finding under N.C. Gen. Stat. § 7B-
907(b)(2), that respondent-father should retain visitation rights,
and its award of weekly supervised visitations based thereon.
Respondent-father next challenges the court's Finding of Fact
6, that there are no barriers to adoption. While it appears the
court entered this finding for the purpose of addressing all of the
permanency planning criteria set forth in N.C. Gen. Stat. § 7B-
907(b), we agree with respondent-father that the criterion of N.C.
Gen. Stat. § 7B-907(b)(3) is not strictly pertinent to a placement
plan that preserves both respondents' parental rights and awards
guardianship to a relative. However, because this finding had no
impact on the court's disposition, its inclusion in the order is
harmless. Cf. In re L.B.
, ___ N.C. App. ___, ___, 639 S.E.2d 23,
33 (2007) (absent this finding, there remained sufficient evidence
. . . to support the trial court's ultimate determination). We
note that respondent-father did not assign error to Finding of Fact
6 in the record on appeal. Respondent-father claims that Reasonable Efforts Reports
submitted by YFS contradict the court's finding under N.C. Gen.
Stat. § 9B-507(b)(5), that YFS made reasonable efforts toward
reunification. Respondent-father itemizes the reports' entries
from 26 April 2005 to 16 February 2006, characterizing many of the
actions taken by YFS as ministerial, not a reasonable effort to
reunify[,] or only part of a reasonable effort. Based on his
classifications, he avers that the efforts to reunify are simply
not sufficient to support the finding that YFS made sufficient
reasonable efforts toward this goal. Respondent-father cites no
authority to support his argument, as required by N.C.R. App. P.
The determination that DSS has made reasonable efforts to
prevent placement of children out of their parents' home is a
conclusion of law subject to de novo
review. In re Helms
, 127 N.C.
App. at 510-11, 491 S.E.2d at 675-76. The Juvenile Code defines
reasonable efforts as follows:
The diligent use of preventive or
reunification services by a department of
social services when a juvenile's remaining at
home or returning home is consistent with
achieving a safe, permanent home for the
juvenile within a reasonable period of time.
If a court of competent jurisdiction
determines that the juvenile is not to be
returned home, then reasonable efforts means
the diligent and timely use of permanency
planning services by a department of social
services to develop and implement a permanent
plan for the juvenile.
N.C. Gen. Stat. § 7B-101(18). We believe that the acts detailed in
the Reasonable Efforts Reports constitute reasonable efforts towardthe goal of reunification established in the court's 7 September
2005 dispositional order. YFS developed a case plan with
respondent-father and monitored his progress with the plan. It
facilitated his parenting classes through the Family Center,
arranged and paid for his FIRST evaluation, arranged his parenting
capacity evaluation with Dr. Tyson, discussed the results of the
evaluations with Drs. Tyson and Strzelecki, reviewed the
evaluations with respondent-father, attempted to arrange his
appointments at McLeod and BHC, and scheduled and supervised his
visitations with D.D.
The services provided to respondent-father
support the court's conclusion that YFS made reasonable efforts
toward reunification. See In re Rholetter
, 162 N.C. App. 653, 662,
592 S.E.2d 237, 243 (2004); see also In re L.B.
, ___ N.C. App. ___,
___, ___ S.E.2d ___, ___ (No. 06-483 filed 2 January 2007)
(concluding that the court's findings were sufficient to show
reasonable efforts toward reunification under N.C. Gen. Stat. § 7B-
Regarding Finding of Fact 9, respondent-father questions the
relevance of the court's finding that D.D. had been in YFS custody
since April of 2005. Under N.C. Gen. Stat. § 7B-907(d), however,
the fact that D.D. had been in a placement outside of the home for
the preceding twelve months required the director of the department
of social services to initiate termination of parental rights
proceedings, unless the court found one of three circumstances
prescribed by N.C. Gen. Stat. § 7B-907(d)(1)-(3). Under N.C. Gen.
Stat. § 7B-907(d)(1), a finding that [t]he permanent plan for thejuvenile is guardianship or custody with a relative relieves the
director of this statutory obligation to begin termination
. Here, the court found, [t]he permanent plan for
the juvenile is currently reunification. The plan should be
changed to guardianship. Although respondent-father observes that
an award of guardianship is a conclusion or a degree rather than
a finding of fact, we interpret Finding of Fact 9 as simply the
court's acknowledgment of the effect of D.D.'s year-long placement
outside the home under N.C. Gen. Stat. § 7B-907(d), and its formal
entry of the necessary finding to preempt termination proceedings
under this subsection.
Respondent-father next challenges the court's finding in
Finding of Fact 10 that additional efforts toward reunification
would be futile and would be inconsistent with the juvenile's
health, safety, and need for a safe permanent home within a
reasonable period of time[.] He insists that his progress just
before the hearing was more than sufficient to warrant further
efforts by YFS. As elsewhere in his brief, he offers no further
argument and no citation to authority in support of this assertion.
N.C.R. App. P. 28(b)(6).
Under N.C. Gen. Stat. § 7B-507(b)(1), the district court may
order the department of social services to cease reunification
efforts upon a finding that [s]uch 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
. Such a finding is in the nature of a conclusion oflaw, insofar as it requires the application of the court's judgment
to facts and circumstances of a case. See In re Helms
, 127 N.C.
App. at 510-11, 491 S.E.2d at 675-76; see also In re Faircloth
N.C. App. 565, 569, 571 S.E.2d 65, 68 (2002) (finding the
mislabeling of findings and conclusions by the trial court to be
immaterial). However classified, the court's finding and
conclusion satisfies the requirement of N.C. Gen. Stat. § 7B-
507(b), and is supported by findings of respondent-father's
ongoing involvement in criminal activity, his lack of appropriate
housing or employment, his unwillingness to accept responsibility
for his prior sex offense as required to receive treatment, and his
failure to begin the substance abuse and other treatment to which
he agreed in his FIRST report. Cf. In re M.J.G.
, 168 N.C. App. at
649-50, 608 S.E.2d at 819-20 (finding compliance with N.C. Gen.
Stat. § 7B-507(b)).
Respondent-father characterizes Finding of Fact 11 as a
conclusion of law unsupported by the court's other findings or by
the evidence. The finding states as follows: At this time, the
juvenile's return to her home is contrary to her best interest.
In our review of Finding of Fact 4, we upheld the court's finding
that it was not in D.D.'s best interest to return home within the
six months. Finding of Fact 11 is merely a partial reiteration of
Finding of Fact 4, speaking to the undesirability of returning D.D.
to respondents' custody [a]t this time[.] Given respondent-
father's admission that it was not possible for him to assumecustody of D.D. at the time of hearing, we likewise find no error
Respondent-father assigns error to Finding of Fact 14, in
which the court noted its colloquy with D.D.'s maternal grandmother
and found that she expressed her understanding and willingness to
accept the responsibility of providing for the child's care and
needs as well as the financial responsibility she shall incur in
providing for this care. He contends that this finding was not
necessary[,] inasmuch as the court should have given him at least
another few months to show progress on his case plan before it
changed the permanency plan to guardianship. Notwithstanding his
position that the court erred by changing the permanent plan to
guardianship, respondent-father offers no cognizable grounds to
disturb this individual finding on appeal. Moreover, the finding
that a prospective guardian understands and has the resources to
assume the responsibilities of guardianship is required by N.C.
Gen. Stat. § 7B-907(f).
Respondent-father also contests the assorted Other findings
contained in Finding of Fact 15. In addition to incorporating by
reference the several documents submitted by YFS, the court found
that the documents provided sufficient evidence to determine the
best interests of [D.D.] Finding of Fact 15 also includes the
finding that respondent-father continues to show recent criminal
activity related to drug trafficking. To the extent respondent-
father repeats his assertion that the documentary materials
submitted by YFS were not formally tendered into evidence at thehearing, we find no merit to this argument. See In re M.J.G.
N.C. App. at 648-49, 608 S.E.2d at 819 (citing In re Ivey
, 156 N.C.
App. at 402, 576 S.E.2d at 389-90). As for the claim that the
court improperly delegated its duty as finder of fact by
incorporating the documents into its order by reference, we hold
that the court made sufficient particularized findings of fact to
comply with N.C. Gen. Stat. § 7B-907(b). See In re L.B.
, ___ N.C.
App. ___, ___ S.E.2d ___ (No. 06-483 filed 2 January 2007).
Lastly, respondent-father asserts without discussion that the
entirety of the order's conclusions of law and decretal provisions
must fail due to the invalidity of the underlying findings of
fact. As discussed above, we hold that the court's findings were
supported by competent evidence and were sufficient (1) to reflect
its consideration of the relevant permanency planning criteria
under N.C. Gen. Stat. § 7B-907(b)-(c), (2) to support its decision
to cease reunification efforts under N.C. Gen. Stat. § 7B-507(b),
and (3) to support its placement of D.D. in the guardianship of her
maternal grandmother as the best plan of care to achieve a safe,
permanent home for the juvenile within a reasonable period of time
under N.C. Gen. Stat. § 7B-907(c). Accordingly, we affirm the
Judge McCULLOUGH concurs.
Judge TYSON concurs in the result only in a separate opinion.
Report per Rule 30(e).