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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1462


Filed: 3 July 2007

IN THE MATTER OF:                    Wilkes County
    J.Z.S.,                        No. 06 JA 24
    A Minor Child.

    Appeal by respondent from order entered 26 July 2006 by Judge Edgar B. Gregory in Wilkes County District Court. Heard in the Court of Appeals 4 June 2007.

    No brief filed for petitioner-appellee.

    David A. Perez for respondent-appellant.

    BRYANT, Judge.

    Respondent-father S.L.R.   (See footnote 1)  appeals from a custody review order transferring legal custody of the minor child, J.Z.S., from the Wilkes County Department of Social Services (WCDSS) to the child's maternal great-grandmother, M.P.
    On 15 February 2006, when J.Z.S. was approximately twenty- three months old, the Wilkes County Department of Social Services (WCDSS) filed a petition alleging that he was a dependent juvenile in that he lacked a “parent, guardian, or custodian responsible for [his] care or supervision.” The petition alleged that respondent- mother, C.M.S., had absconded from probation and ceased contact with M.P. after leaving Wilkes County to attend a court date in Charlotte, North Carolina on 3 January 2006. It further allegedthat respondent-mother was subject to outstanding arrest warrants for a felony charge and for violating her probation.
    On 30 April 2006, the district court entered an adjudication of dependency and ordered WCDSS to retain legal and physical custody of J.Z.S. The court found that respondent-mother had abandoned J.Z.S. and that respondent-father agreed to the adjudication of dependency, having “had little contact” with his son except for a two and one-half month period in which the child was left in his care by respondent-mother. In response to respondent-father's request “that a home study be done with the view toward placing J[.Z.S.] with him[,]” the court ordered WCDSS to obtain a home study from the Mecklenburg County Department of Social Services (MCDSS). The court authorized WCDSS to continue J.Z.S.'s placement with M.P., noting that he had lived with his great-grandmother for eighteen months of his life and “was doing well in this placement.” The court awarded visitation to respondent-father “under such terms and conditions as directed by [WCDSS].”
    The court held a custody review hearing on 10 July 2006, pursuant to N.C. Gen. Stat. § 7B-906, and received into evidence the WCDSS court summary and the home study on respondent-father prepared by MCDSS. WCDSS Social Worker Tameika Hayes advised the court that J.Z.S. had lived with M.P. “pretty much all of his life” and was doing “really well” in her care. Respondent-father's visitations with the child had gone well; and MCDSS had approved his home as a placement for J.Z.S. without conditions. Respondent-father was paying monthly child support but had not provided M.P. with any additional clothing or items for the child. Based on her investigation, Hayes believed that both M.P. and respondent-father would be “appropriate caretakers” for the child and found nothing to suggest “that one would care-take any better than the other.” Hayes recommended that “custody be given to [M.P.], with the father having visitation,” in order “to maintain the status quo that's been in place for the past couple of months.” She averred that any transfer of J.Z.S. from M.P. to his father would need to be gradual, given the length of time the child had lived with his great-grandmother. Upon further questioning, Hayes clarified that WCDSS's “recommendation is that [respondent-father]'s visitation be gradually increased in hopes of transitioning [the child] out of [M.P.]'s home” into the home of respondent-father.
    M.P. testified that WCDSS placed J.Z.S. in her home from May of 2004 until June of 2005. After WCDSS returned the child to respondent-mother, “[h]e went with his mom and dad to Charlotte.” Respondent-mother left J.Z.S. in respondent-father's care for two months. When M.P. learned that the child was living with his father, she asked respondent-mother to retrieve the child. Respondent-mother returned the child to M.P. in October of 2005. Between October 2005 and WCDSS's filing of the dependency petition in February of 2006, the child had stayed with respondent-father during the week of Christmas and for “a couple” of weekends. Since WCDSS's involvement, respondent-father was visiting J.Z.S. inM.P.'s home for three or four hours on Saturdays. The child “knows who his dad is” and “interacts with him just fine.”
    Respondent-father testified that he was a lifelong resident of Charlotte, North Carolina and owned a house with a bedroom, bed, and crib for J.Z.S. He had retired from the Charlotte Observer after twenty years as a warehouse supervisor and was currently employed at the Building Center managing its recycling program. He had two adult daughters who lived “[w]ithin fifteen minutes” of his home in Charlotte, and five grandchildren. Respondent-mother and J.Z.S. came to live with respondent-father in June of 2005. After respondent-mother moved out of his home in August 2005, he cared for J.Z.S. until 21 October 2005. He allowed respondent-mother to take J.Z.S. in October 2005, because he believed he “didn't have a legal right to tell her no.” While he was no longer in a relationship with respondent-mother, respondent-father admitted providing her with cocaine while she was pregnant with J.Z.S. He denied any current involvement with drugs or alcohol and submitted a negative drug screen after the review hearing. He had prepared his home for J.Z.S. in accordance with MCDSS's instructions by child-proofing his cabinets and electrical outlets.
    In its order entered 26 July 2006, the district court incorporated by reference the home study prepared by MCDSS and the court summary submitted by WCDSS. After addressing respondent- father's employment, income, and housing, the court entered the following findings of fact:
        5. The father lives in Charlotte, North Carolina, and was born in 1946. He wasintroduced to the mother by one of her friends. The father admits that in the past, he provided the mother with cocaine, although he states that he has not used the drugs.

        . . .

        8. . . . [T]he child spent approximately two months living with his father. The child has otherwise lived with his maternal great grandmother, M[.P.]

        9. . . . [T]he father had provided good care for the child during the two months that the child resided with the father. The father has no prior criminal convictions. The father has two daughters, age 39 and 37, and has grandchildren. Court inquired of the father whether he would be willing to submit to a drug screen following the completion of the hearing in this matter. The father agreed and was drug tested. The results of the test were negative.

        10. The maternal great-grandmother of the child, M[.P.], is 66 years old. She is retired, and lives in Wilkes County. She is widowed and lives with the child alone in her home. She receives Social Security retirement and child support. There was no evidence of any drug use or any problems present in the grandmother's home. There is no evidence other than that the great grandmother has provided good care for the minor child. Although she has diabetes, she has good control of her condition. She otherwise feels fine, and has no other health concerns.

        11. The father has had visitation with the minor child in the home of the maternal great- grandmother. The great-grandmother testified that these visits have gone well, and the father has been appropriate during these visits.

Based on these facts, the court found and concluded that the best interest of J.Z.S. would be served by granting legal and physical custody to M.P., with respondent-father enjoying “reasonablevisitation with the child.” The court ordered WCDSS to assist in implementing a visitation schedule providing respondent-father with (1) one overnight visit per week for four weeks, (2) two overnight visits per week for the next four weeks, and (3) bi-weekly weekend visitations thereafter. The court awarded respondent-father additional visitation with J.Z.S. “during Christmas and during summers at such times and places as [he] and [M.P.] are able to agree.” Finally, the court ordered WCDSS to report to the court any “problems during the father's visitation[,]” whereupon “a temporary order may be issued to address the same.” Respondent- father appealed from the order changing legal custody of J.Z.S., pursuant to N.C. Gen. Stat. § 7B-1001(a)(4).


    Initially, we note WCDSS has moved to dismiss respondent- father's appeal as untimely. WCDSS contends respondent-father filed notice of appeal on 7 September 2006, more than 30 days after the district court entered its order on 26 July 2006. N.C. Gen. Stat. § 7B-1001(b) (2005). As respondent-father notes, however, WCDSS fails to demonstrate when, if ever, it served him with a copy of the district court's order, as required by N.C.R. Civ. P. 58. N.C. Gen. Stat. § 1A-1, Rule 58 (2005). Under N.C. Gen. Stat. § 7B-1001(b), the deadline for filing notice of appeal is “30 days after entry and service of the order in accordance with [Rule] 58.” (Emphasis added); see also N.C.R. App. P. 3A(a). Absent evidence of the date of service upon respondent-father, we cannot determine that his notice of appeal is untimely under N.C. Gen. Stat. § 7B-1001(b). Accordingly, we deny appellee's motion to dismiss the appeal.
    In his appeal, respondent-father challenges the court's determination that the best interests of J.Z.S. were served by granting legal custody to M.P. and by allowing respondent-father only “reasonable visitation” with his son. Because we conclude that the court failed to support its disposition with the necessary findings of fact under N.C. Gen. Stat. § 7B-906(c), we vacate and remand for further proceedings.
    Once a child has been adjudicated a dependent juvenile under N.C. Gen. Stat. § 7B-807, the district court enjoys broad discretion in selecting an appropriate disposition consistent with the best interests of the child. N.C. Gen. Stat. §§ 7B-901, -903, -905 (2005); see also In re Yocum, 158 N.C. App. 198, 206, 580 S.E.2d 399, 404 (reviewing custody order only for abuse of discretion), aff'd per curiam, 357 N.C. 568, 597 S.E.2d 674 (2003). Where the court removes a child from his parent's custody, it must conduct a review hearing within 90 days pursuant to N.C. Gen. Stat. § 7B-906(a). In reviewing a custody order under N.C.G.S. § 7B-906(c), the trial court is required to 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 of time.
        (2) Where the juvenile's return home is unlikely, the efforts which have been made to evaluate or plan for other methods of care.

        . . .

        (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.

        . . .

        (8) When and if termination of parental rights should be considered.

        (9) Any other criteria the court deems necessary.

N.C. Gen. Stat. § 7B-906(c) (2005); see generally In re J.D.C., 174 N.C. App. 157, 161, 620 S.E.2d 49, 52 (2005) (citing In re Shue, 311 N.C. 586, 596, 319 S.E.2d 567, 573 (1984)). As with the initial disposition, the court is authorized at this hearing to “make any disposition authorized by G.S. 7B-903, including the authority to place the juvenile in the custody of either parent or any relative . . . found by the court to be in the best interests of the juvenile.” N.C. Gen. Stat. § 7B-906(d) (2005). However, the trial court may take such action only “after making findings of fact” under N.C.G.S. § 7B-906(c). N.C.G.S. § 7B-906(d) (2005).
    As quoted above, the findings included in the review order do not address the likelihood of returning J.Z.S. to respondent- father's custody within a reasonable time, or whether any efforts or services were warranted to facilitate his return. N.C.G.S. § 7B-906(c)(1)-(2) (2005). While the court's decision to transfer legal custody from WCDSS to M.P. suggests an intention not toreunite the child with respondent-father in the foreseeable future, the visitation schedule adopted by the court is not inconsistent with WCDSS's recommendation to transition the child back into his father's home. The court's order includes no findings which might illuminate its evaluation of these issues. Nor does the order address the appropriate course of action vis a vis respondent- mother under N.C. Gen. Stat. § 7B-906(c)(8). Accordingly, we vacate the order and remand for further findings of fact consistent with N.C. Gen. Stat. § 7B-906(c)-(d). In re L.L., 172 N.C. App. 689, 704-05, 707, 616 S.E.2d 392, 401-02, 403 (2005).
    We emphasize that the district court's proper focus at a dispositional review hearing is the best interests of the child. N.C.G.S. § 7B-906(c)-(d) (2005). The fact that respondent-father was found by WCDSS to be an appropriate caretaker does not compel a conclusion that it is in the child's best interests to be returned to respondent-father's custody. In re Yow, 40 N.C. App. 688, 693, 253 S.E.2d 647, 650, disc. review denied, 297 N.C. 610, 257 S.E.2d 223 (1979), and superseded by statute on different grounds as stated in In re Poole, 151 N.C. App. 472, 474, 568 S.E.2d 200, 201 (2002).
    Vacated and remanded.
    Chief Judge MARTIN and Judge HUNTER concur.
    Report per Rule 30(e).

Footnote: 1
    Initials are used throughout the opinion to protect the identity of the juvenile.

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