IN THE MATTER OF:
Stanly County
D.J.R. No. 05 J 68
Mark T. Lowder for Stanly County Department of Social Services
petitioner-appellee.
Attorney Advocate Vita Pastorini for Guardian ad Litem.
Mercedes O. Chut for respondent-mother appellant.
McCULLOUGH, Judge.
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 [2006] 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.
Affirmed.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).
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