IN THE MATTER OF:
D.J.R. No. 05 J 68
Mark T. Lowder for Stanly County Department of Social Services
Attorney Advocate Vita Pastorini for Guardian ad Litem.
Mercedes O. Chut for respondent-mother appellant.
Respondent-mother (respondent) appeals from a permanency
planning order ceasing reunification efforts between her and her
son, D.J.R., and awarding guardianship of D.J.R. to his paternal
grandparents. The child's father does not join in this appeal.
For the reasons set forth below, we affirm.
On 1 July 2005 , the Stanly County Department of Social Services (DSS) filed a juvenile petition alleging that D.J.R. was neglected. The petition alleged that D.J.R. stopped breathing; that respondent shook the baby in an attempt to get D.J.R. to breathe; and that she failed to call 911 or waken any other occupants in the home where she and D.J.R. were residing, including D.J.R.'s paternal grandparents. The petition also alleged that respondenthad a history of mental illness and that respondent's two older children are in the custody of respondent's mother. DSS took non- secure custody of D.J.R.
The trial court entered subsequent Non-Secure Custody orders. By order filed 4 May 2006, the trial court adjudicated D.J.R. a neglected juvenile. The trial court found that respondent refused to execute a Safety Assessment with DSS; that respondent had not been compliant with mental health treatment; and that respondent had not entered into a Family Services Case plan with DSS. The trial court ordered respondent to have supervised visitation and enter into a case plan. Respondent subsequently entered into a case plan requiring her to schedule and participate in a psychological evaluation and follow all recommendations made by the mental health provider for treatment, classes and further assessments. Respondent participated in a psychological evaluation through Eastern Carolina Health Resources, who recommended psychotherapy to develop positive parenting strategies and to focus on her unstable interpersonal relationships. Respondent was admitted for therapy services with Lisa Gavin of Port Human Services.
The trial court held a permanency planning hearing on 21 September 2006 and heard testimony from DSS social worker Stacy McCroskey, respondent, and respondent's boyfriend. The trial court also received into evidence and considered the DSS Permanency Planning Review Hearing Report, respondent's Psychological Evaluation by Eastern Carolina Health Services, a letter from LisaGavin of Port Human Services, and court summaries. Based on the information provided at the hearing, the court entered an order on 23 October 2006 relieving DSS of further efforts to reunify D.J.R. with respondent and awarding guardianship of the child to his paternal grandparents. Respondent appeals.
Respondent contends the trial court erred in concluding that DSS made reasonable efforts to reunify her with D.J.R. and that ceasing reunification efforts was appropriate. She argues these rulings are not supported by adequate conclusions of law, adequate findings of fact, or credible evidence.
The purpose of a permanency planning hearing is to develop a plan to achieve a safe, permanent home for the juvenile within a reasonable period of time. N.C. Gen. Stat. § 7B-907(a) (2005). A trial court may order cessation of reunification efforts when the court finds as fact 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 time[.] N.C. Gen. Stat. § 7B-507(b)(1) (2005). The findings of fact are binding on appeal if supported by 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, disc. review denied, 358 N.C. 543, 603 S.E.2d 877 (2004). [T]he trial court's conclusions of law are reviewable de novo. In re Pope, 144 N.C. App. 32, 40, 547 S.E.2d 153, 158, aff'd per curiam, 354 N.C. 359, 554 S.E.2d 644 (2001).
N.C. Gen. Stat. § 7B-507(a)(2) requires any order that establishes or continues a juvenile's placement in DSS custody toinclude findings as to whether a county department of social services has made reasonable efforts to prevent or eliminate the need for placement of the juvenile[.] N.C. Gen. Stat. § 7B-507(a)(2). The Juvenile Code defines [r]easonable efforts as [t]he diligent use of . . . reunification services by a department of social services when reunification is consistent with achieving a safe, permanent home for the juvenile within a reasonable period of time. N.C. Gen. Stat. § 7B-101(18) (2005). Under N.C. Gen. Stat. § 7B-507(b)(1), a trial court may cease DSS's efforts to reunify the juvenile with a respondent-parent if the [trial] court makes written findings of fact that: (1) [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 time[.] N.C. Gen. Stat. § 7B-507(b)(1). The statute also provides that, [i]n determining reasonable efforts to be made with respect to a juvenile . . ., the juvenile's health and safety shall be the paramount concern. N.C. Gen. Stat. § 7B-507(d).
In its permanency planning order, the trial court made the statutory finding that DSS has made reasonable efforts to achieve the prior Permanent Plan of [reunification with respondent] and it is in the best interests of the Juvenile for his Permanent Plan to be changed to Guardianship with the Juvenile's paternal grandparents[.] DSS submitted Permanency Planning Review Reports in which it documented its efforts to reunify respondent with D.J.R. These efforts included: developing a Family ServicesAgreement; attempting to maintain contact with respondent and respondent's mental health providers; counseling respondent regarding the permanent plan and alternate permanent plan; requesting two home studies with respondent; and maintaining contact with care givers. We conclude there was clear and convincing evidence to support the trial court's findings that DSS made reasonable efforts towards the reunification of respondent and her son.
The trial court also made the finding that reunification efforts made by the Department would serve no useful purpose, and would be futile and inconsistent with the Juvenile['s] safety and need for a safe, permanent home within a reasonable period of time[.] At the permanency planning hearing, DSS social worker Stacy McCroskey testified that respondent had several different residences since moving to Havelock; that as of August 2006, respondent was living with two other adults and had asked for a home study of this residence in early September 2006; and that respondent had not provided any other information on the residence. McCroskey testified that respondent had obtained consistent employment and that respondent had some visitation with D.J.R. since the April  hearing and that respondent did not have regular contact with DSS. Respondent's therapist, Lisa Gavin, wrote in her 13 September 2006 letter that she had seen respondent on three visits since respondent's last court date, but did not hear from her until mid-August. Ms. Gavin wrote that respondent wants her son back but has not been willing to address the issues thatlost her custody in the first place. In light of her psychological report and her lack of commitment to treatment it is not certain that she will ever be able to do this. DSS reports show that D.J.R. has been living with his paternal grandparents since his birth, that D.J.R. has bonded with his paternal grandparents, and that they have provided D.J.R. with a stable home. We conclude that the testimony and documents relied upon by the district court were competent evidence sufficient to support the trial court's findings and conclusions that ceasing reunification and awarding guardianship was appropriate.
Respondent next contends the court erred in concluding that ceasing reunification efforts and awarding the paternal grandparents guardianship was in D.J.R.'s best interest.
The General Assembly has decreed that the Juvenile Code is to be interpreted and construed to ensure that the best interests of the juvenile are of paramount consideration by the court and that when it is not in the juvenile's best interest to be returned home, the juvenile will be placed in a safe, permanent home within a reasonable amount of time. N.C. Gen. Stat. § 7B-100(5) (2005). The courts are directed to take action which is in the best interests of the juvenile when the interests of the juvenile and those of the juvenile's parents or other persons are in conflict. N.C. Gen. Stat. § 7B-1100(3) (2005). On appeal, we review a trial court's decision of what is in the best interests of a juvenile for an abuse of discretion. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001). We find no abuse of discretion. The court's order demonstrates that it made a reasoned decision based upon competent evidence. The order reflects that the paternal grandparents are willing to continue custody and care of D.J.R. and are providing D.J.R. with a safe home.
Respondent further contends the trial court should be reversed because it held a permanency planning hearing fourteen months after D.J.R. was removed from her custody despite the statutory requirement that the judge shall conduct a review hearing designated as a permanency planning hearing within 12 months after the date of the initial order removing custody[.] N.C. Gen. Stat. § 7B-907(a). This Court has held that to warrant reversal of a trial court's permanency planning order for a violation of section 7B-907(a), an appellant must demonstrate prejudice. In re L.B., ___ N.C. App. ___, ___, 639 S.E.2d 23, 30 (2007). While we agree there was error in holding the permanency planning hearing fourteen months after D.J.R. was removed from respondent's custody, respondent has not demonstrated that she was prejudiced by the two- month delay. This assignment of error is overruled.
Finally, respondent contends numerous findings of fact set forth in the trial court's order were entered in error where the record does not contain sufficient evidence to support such findings. However, this contention is without merit.
This Court is 'bound by the trial court's findings of fact where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary.' In re B.P.,S.P., R.T., 169 N.C. App. 728, 732-33, 612 S.E.2d 328, 331 (2005) (citations omitted). The record before this Court is replete with evidence supporting the findings of fact made by the lower court in the permanency planning order. Therefore, the corresponding assignments of error are overruled.
Accordingly, the order of the lower court is affirmed.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).
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