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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1537

NORTH CAROLINA COURT OF APPEALS

Filed: 04 September 2007

In the Matter of:
W.D.M., K.M., Z.S.,
& D.A.M.,
Minor Children.

                            Henderson County                            
                            No.     99J15
                                99J16
                                03J132
                                03J157

    Appeal by respondent-father and respondent-mother from order entered 18 January 2006 by Judge Mark E. Powell in Henderson County District Court. Heard in the Court of Appeals 21 May 2007.

    Susan L. Fosmire, for petitioner, Henderson County Department of Social Services.

    Pamela Newell Williams, for Guardian Ad Litem.

    Charlotte Gail Blake, for respondent-father.

    Michael E. Casterline, for respondent-mother.

    STEELMAN, Judge.
    When sufficient findings of fact, supported by competent evidence, support the conclusion of law that it is in the best interest of the juveniles that reunification efforts with the biological parents cease, such conclusion must be sustained.
    D.A.M., K.M. and W.D.M. are the minor children of William Douglas Moffitt (“father”). The mother of and K.M. failed to appear at hearings and failed to appeal the permanency planning hearing regarding D.A.M. and K.M. She is not a party to thisappeal. Eddeana Moffitt (“mother”) is the mother of Z.S. and W.D.M.
    On 3 November 2003, the Henderson County Sheriff's Department responded to a report alleging that father was in the backyard of the family residence with a weapon. Thirty minutes later, the officers responded again to a report that shots had been fired at the residence. The officers stated respondents were under the influences of drugs. Drug paraphernalia was in plain view at respondents' residence, and father had needle tracks on his arm.
    DSS filed petitions on 5 November 2003 with regard to Z.S., 2 December 2003 with regard to D.A.M. and W.D.M., and 23 January 2004 with regard to K.M., alleging that the juveniles were neglected because they were living in an environment injurious to the juveniles' welfare.
    The juveniles were thereafter adjudicated neglected, and Z.S. was removed from the home on 4 November 2003; D.A.M. and W.D.M. were removed from the home on 2 December 2003; and K.M. was removed from the home on 20 January 2004. To achieve reunification between the parents and the four juveniles, DSS recommended and the court ordered that respondents establish a stable, safe and suitable residence, find stable employment, obtain mental health assessments and follow treatment recommendations, obtain a substance abuse assessment and follow treatment recommendations, and submit to random urine, blood and hair drug tests.
    On 8 September 2005, the court held a permanency planning hearing, and entered an order changing the permanent plan fromreunification to termination of parental rights and adoption. Father appealed the order as to his children, D.A.M., K.M., and W.D.M. Mother appealed the order as to her children, W.D.M. and Z.S.

I: Ceasing Reunification Efforts
    Respondents contend that the trial court did not make sufficient findings of fact as required by N.C. Gen. Stat. § 7B-907 to support its conclusion that it was in the best interests of the juveniles that reunification efforts with the biological parents cease. We disagree.
    Pursuant to N.C. Gen. Stat. . 7B-907, the trial court must “consider information from the parent, juvenile[s], the guardian, any foster parent, relative or pre-adoptive parent providing care for the child, the custodian or agency with custody, the guardian ad litem, and any other person or agency which will aid it in the court's review.” N.C. Gen. Stat. § 7B-907(b). At the conclusion of the permanency planning hearing, if the trial court determines the child is not to return home, the trial court is required to consider certain criteria and make written findings of fact on relevant criteria. Id. The criteria set forth in N.C. Gen. Stat. § 7B-907(b) are:
        (1) Whether it is possible for the juvenile to be returned home immediately or within the next six months, and if not, why it is not in the juvenile's best interests to return home;

        (2) Where the juvenile's return home is unlikely within six months, whether legal guardianship or custody with a relative or some other suitable person should be established, and if so, the rights andresponsibilities which should remain with the parents;

        (3) Where the juvenile's return home is unlikely within six months, whether adoption should be pursued and if so, any barriers to the juvenile's adoption;

        (4) Where the juvenile's return home is unlikely within six months, whether the juvenile should remain in the current placement or be placed in another permanent living arrangement and why;

        (5) Whether the county department of social services has since the initial permanency plan hearing made reasonable efforts to implement the permanent plan for the juvenile;

        (6) Any other criteria the court deems necessary.
Id. The permanency planning order need not “contain a formal listing of the § 7B-901(b)(1)-(6) facts, expressly denominated as such. . . [as long as the trial court makes] written findings regarding the relevant § 7B-907(b) factors.” In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004). “The resulting findings of fact must be 'sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment.'” In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004) (quoting Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982)).
    “Appellate review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings [of fact] and the findings [of fact] support the conclusions of the law.” J.C.S., 164 at 106, 595 S.E.2d at 161. “Where the trial court's findings are supported by competentevidence, they are binding on appeal, even if there is evidence which would support a finding to the contrary.” J.S., 165 N.C. App. at 511, 598 S.E.2d at 660.     
    In the instant case, father specifically challenges findings of fact numbers 10, 14, 21, 23, 36, 37, 39, 40, 41, and 43 with respect to W.D.M., findings of fact numbers 8, 12, 15, 16, 23, 25, 40, 42, 43, 45, 46, 47, 49 with respect to D.A.M. and K.M., and conclusions of law numbers 2 and 3 with respect to W.D.M., D.A.M., and K.M., arguing that the findings are not supported by competent evidence and that the findings do not support the trial court's conclusion to cease reunification efforts. Father specifically challenges the following findings with regard to W.D.M.:
        10.    That the parents testified that their latest separation was on or about 3 November 2005. They separated because the father relapsed in his drug abuse and they had an argument over money which resulted in a physical altercation between the parties. . . .

        14.     No progress in working the case plan had been made from either party til mid to late 2005. . . .

        21.    At the adjudication and disposition hearing, the court ordered the Moffitts to do certain things listed previously in this order. Until recently they hadn't done much of anything: they missed visitations causing emotional distress to juvenile, they did not complete any of the classes or counseling that was ordered. . . .
    
        23.    In the past few months, Mr. Moffitt has made progress in working the case plan, to wit:

            a.    completed his IOP,            b.    completed his Mental Health Assessment,
            c.    has stable housing since moving to Gaston County. . . .

        37.    It would be in the best interest of the juvenile for any non-custodial parent of the juvenile to have visitation set forth below. . . .

        39.    This was a permanency planning hearing pursuant to N.C. Gen. Stat. §7B-907, the Court further makes findings on the following matters:

            a.    The juvenile's history of placement outside the home since December 2003 is as stated in the HCDSS Permanency Planning Court Report, which is incorporated herein by reference.
            b.     It is not possible (and certainly not likely) that the juvenile can safely and lawfully be returned to a parent within six months of this hearing since the Moffitts made no progress in their case plan until late 2005, given the requirements of the N.C. Juvenile Code.
            c.     As the Juvenile's return home within six months is unlikely, adoption should be pursued in this matter. As the Juvenile's return home within six months is unlikely, the Juvenile's current placement should remain the same.

        40.    The Court's plan to achieve a safe, permanent home for the Juvenile within a reasonable period of time should be the termination of the parental rights of the parents of the juvenile, so that the juvenile may subsequently be placed for adoption.

        41.    The Court specifically approves of the past placement of this juvenile, and the custody arrangement employed in this case. The prospective custody and placement arrangements stated below will be in the best interest of the juvenile. . . .
        43.     Prospectively, HCDSS shall use reasonable efforts defined by N.C. Gen. Stat. §7B-101(18). These efforts shall be to develop and implement a permanent plan other than reunification for the juvenile. Efforts to reunify the juvenile with a parent would be futile, under the circumstances of this case.         
Father specifically challenges the following findings of fact with regard to D.A.M. and K.M.:    
        8.     The juvenile D.A.M. was removed from the home December 2003 by HCDSS over allegations of suspected drug use and mental health issues of the parents. The juvenile K.M. was removed from home January 2004 over allegations of domestic violence between parents, drug use by the parents and lack of proper supervision.

        12.     That the parents testified that their latest separation was on or about 3 November 2005. They separated because the father relapsed in his drug usages and they had an argument over money which resulted in a physical altercation between the parties. . .

        15.     Prior to 3 November 2005, there had been other acts of domestic violence between the parties coming from both sides.

        16.     No progress in working the case plan had been made for either party until mid to late 2005. . .

        23.    At the adjudication and disposition hearing, the court ordered the Moffitts to do certain things listed previously in this order. Until recently, they hadn't done much of anything: they missed visitations causing emotional distress to the juvenile[s], they did not complete any of the classes or counseling that was ordered.

        25.    In the past few months, Mr. Moffitt has made progress in working the case plan, to wit:
            a.    completed his IOP,
            b.    completed his Mental Health Assessment,
            c.    has stable housing since moving to Gaston County.

        40.    The Court finds that it would be in the juveniles' best interest for the plan to be something other than adoption. . . .

        43.    It would be in the best interest of the juveniles for any non-custodial parent of the juveniles to have the visitation set forth below.

        45.    This was a permanency planning hearing pursuant to N.C. Gen. Stat. §7B-907, the Court further makes findings on the following matters:

            a.    The juveniles' history of placement outside the home since December 2003, for D.A.M. and January 2004 for K.M., is as stated in the HCDSS Permanency Planning Court Report, which is incorporated herein by reference.
            b.    It is not possible (and certainly not likely) that the juveniles can safely and lawfully be returned to a parent within six months of this hearing given the requirements of the N.C. Juvenile Code in that Mr. Moffitt made no progress in their case plan until late 2005 and there is no evidence that Janice Gordon has made any progress.
            c.     As the Juveniles' return home within six months is unlikely, the prospects for the juveniles for the placement of the juveniles' guardianship or custody with a relative or other responsible person approved by this Court are as follows: with a relative or other suitable person.
            d.     As guardianship/custody is a possibility, the rights and responsibilities, if any, which should remain with the respondent parents are as follows: the payments of reasonable support for thejuveniles. As the Juvenile's return home within six months is unlikely, the Juveniles' current placement should remain the same.

        

        46.    The Court's plan to achieve a safe, permanent home for the Juveniles within a reasonable period of time should be the placement of custody of the juveniles with a relative or other court-approved person.

        47.    The Court specifically approves of the past placement of these juveniles, and the custody arrangement employed in this case. The prospective custody and placement arrangements stated below will be in the best interest of the juveniles.

        49.    Prospectively, HCDSS shall use reasonable efforts defined by N.C. Gen. Stat. §7B-101(18). These efforts shall be to develop and implement a permanent plan other than reunification for the juveniles. Efforts to reunify the juveniles with a parent would be futile, under the circumstances of this case.

    Father specifically challenges the following conclusions of law:
        2.    The juveniles are of a status such that it is in the best interest of the juveniles that custody and placement discretion be in HCDSS, as stated hereinbelow.

        3.    The Court's plan to achieve a safe, permanent home for the Juveniles within a reasonable period of time should be the placement of custody of the juveniles with a relative or other court-approved person.

    Mother specifically challenges the following finding of fact with regard to Z.S. and W.D.M.:
        8.     At the hearing mother testified that she continued to use Methamphetamine until August 2005.

    Mother specifically challenges the following conclusions of law:
        2.    The juvenile[s] are of a status such that it is in the best interest of the juvenile[s] that custody and placement discretion be in HCDSS, as stated hereinbelow.

        3.    The Court's plan to achieve a safe, permanent home for the Juvenile[s] within a reasonable period of time should be the termination of the parental rights f the parents of the juvenile[s], so that the juvenile[s] may subsequently be placed for adoption.
    Our review of the record reveals that each of the findings are supported by sufficient evidence and support the court's legal conclusions. See In re Eckard, 144 N.C. App. 187, 199, 547 S.E.2d. 835, 842 (2001) (stating that the trial court can only order the cessation of reunification efforts when it makes findings based upon sufficient evidence to support the conclusion that it is in the juvenile's best interest to cease reunification efforts).
    Father does not challenge the findings of fact that mother continued to use Methamphetamine until August 2005, that he used Methamphetamine in January 2005 and last used Methamphetamine in May 2005, that he and mother caused physical injuries to each other during an argument, that prior to 3 November 2005 there were other acts of domestic violence between him and mother, that the juveniles appear to be making improvements with their emotional and behavioral problems, that mother moved into a Woman's Shelter, that he missed at least two visits with the juveniles, that mother'sprogress may have been delayed by her time spent in jail and lack of a driver's license, that he and mother separated on several occasions in 2004 and intend to remain separated, that D.A.M. does not want to be reunited with him, and that K.M. would like to be reunited with him if she knew he wasn't using controlled substances.
    Mother only challenges the finding of fact that she used Methamphetamine until August 2005. Mother does not challenge the findings of fact that father used Methamphetamine in January 2005 and last used Methamphetamine in May 2005, that her and father caused physical injuries to each other during an argument, that prior to 3 November 2005 there were other acts of domestic violence between her and father, that the juveniles have made significant improvements since being placed in foster care, that she moved into a Woman's Shelter, that father missed at least two visits with the juveniles, that her progress may have been delayed by her time spent in jail and lack of a driver's license, and that she and father separated on several occasions in 2004 and intend to remain separated.
    “[I]t is the child[ren]'s best interests which is our guiding beacon.” In re Montgomery, 77 N.C. App. 709, 717, 336 S.E.2d 136, 141 (1985) (quoting In re Montgomery, 311 N.C. 101, 116, 316 S.E.2d 246, 256 (1984)). Because the juveniles' health, safety, and the need for a permanent home are the paramount concern, the trial court did not err in concluding that it is in the best interest of the juveniles that custody and placement discretion be in SocialServices and that reunification efforts with the biological parents cease.
    Respondents have failed to argue their remaining assignments of error in their respective briefs and they are deemed abandoned N.C. R. App. P. 28 (b)(6).

    AFFIRMED.
    Chief Judge MARTIN and Judge STEPHENS concur.
    Report per Rule 30(e).

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