IN THE MATTER OF: Catawba County
A.B.W. and A.F.W. Nos. 05 JA 88;
05 JA 89
Melanie Stewart Cranford, for Guardian ad Litem, and Lauren
Vaughan, for petitioner-appellee Catawba County Department of
Social Services.
Mary McCullers Reece, for respondent-appellant-mother.
Terry F. Rose, for respondent-appellant-father.
JACKSON, Judge.
Phyllis W. (“respondent-mother”) and Terry W. (“respondent-
father”) (collectively, “respondents”), parents of the minor
children A.B.W. and A.F.W., appeal from a permanency planning order
filed on 5 February 2007 that ceased further efforts toward
reunification and established a permanent plan of adoption for
A.F.W. and a concurrent permanent plan of adoption and guardianship
for A.B.W. For the following reasons, we affirm.
On 7 April 2005, the Catawba County Department of Social
Services (“DSS”) filed a petition alleging that A.B.W. and A.F.W.
were neglected juveniles. In the petition, DSS expressed concernthat A.B.W. had poor school attendance and that A.F.W. continued to
wear diapers at age four
. DSS noted that these same concerns had
been reported in 2002 and that on 17 October 2002, there had been
a finding of neglect due to the juveniles' not receiving proper
care. DSS further alleged that respondent-mother (1) utilized a
hospital emergency room instead of establishing primary medical
care for the juveniles; (2) refused to allow the social worker
access to the home
; and (3) demonstrated symptoms of “severe and
persistent mental illness,” but had refused to submit to a mental
health assessment or follow any recommended treatment
. Finally,
DSS alleged that both respondents refused to (1) participate in any
remedial service to ensure that A.B.W. attended school
consistently; (2) establish consistent primary care for the
juveniles; and (3) have a developmental evaluation completed for
A.F.W. as recommended by a pediatrician.
On 19 April 2005, both respondents were appointed counsel, and
respondent-mother was appointed a guardian ad litem . On 22 August
2005, the trial court entered an interim order expressing concern
that A.B.W. had “missed a great deal of school and the same is not
in her best interest.” The court warned respondents that if A.B.W.
continued to be absent from school without a valid note from a
treating physician, then the court would consider granting non-
secure custody of the juveniles to DSS.
By order entered 30 September 2005, the trial court ordered
that respondent-mother establish care for the children with a
family doctor and abstain from using the emergency room as thejuveniles' primary health care provider. The trial court again
warned respondents that they must ensure that A.B.W. attend school
regularly and on time or else the court would consider granting DSS
non-secure custody. Additionally, the trial court ordered that
respondent-mother provide DSS and the guardian ad litem access to
the residence and the juveniles.
Despite the trial court's orders, A.B.W. continued to be
absent from school, and on 14 October 2005, DSS was granted non-
secure custody of the juveniles. On 18 October 2005, DSS filed a
motion for an order to show cause, alleging that it was unable to
locate A.F.W. DSS claimed that respondent-mother was able to
comply with the court's orders by disclosing A.F.W.'s location, but
had “displayed willful disobedience of the [c]ourt's lawful orders,
directives and instructions.” DSS requested that respondent-mother
appear and show cause as to why she should not be held in civil or
criminal contempt.
On 2 December 2005, the Catawba County Sheriff's Department
located A.F.W. in respondents' custody. Both respondents were
charged with felony child abduction due to their actions in
preventing DSS from assuming custody of A.F.W.
On 15 August 2006, the trial court entered a combined
adjudicatory and dispositional order, concluding that A.B.W. and
A.F.W. were neglected juveniles. The court ordered respondents
to (1) comply with a case plan developed by DSS; (2) attend
individual therapy on a regular basis; and (3) participate in and
complete the Nurturing Program. By order entered 12 September 2006, the trial court found that
respondent-mother had “flatly refused to comply” with its orders
and that respondent-father demonstrated a “longstanding pattern to
follow” respondent-mother's direction. The trial court ordered
respondents to comply with their case plan and obtain a
psychological evaluation.
Both respondents refused to sign the
case plan, seek counseling, and attend parenting classes, and both
failed to appear for a psychological evaluation.
By order entered 5 February 2007, the trial court found that
both respondents had “failed to make any substantial or significant
progress toward compliance with the case plan or the [c]ourt's
prior orders.” Specifically, the court found that respondents had
failed to (1) obtain independent housing; (2) obtain psychological
evaluations; (3) obtain mental health counseling; and (4) complete
the Nurturing Program. The court further noted that both
respondents “have openly and adamantly refused to do what the
[c]ourt requires” and that respondent-mother has “a very rigid
belief system that is logical to her, but which interferes with her
ability to exercise good judgment in the care of her children.”
Additionally, the court found that both respondents “rigidly
believe that they are excellent parents and that no intervention is
necessary” and that their “refusal to abide by the [c]ourt's orders
and to accept intervention and treatment directly impacts their
children and any chance of reunification.” After finding that “if
the children were returned to the parents in the absence of such
intervention and treatment, the same issues that brought thesechildren into foster care would immediately resume,” the trial
court concluded that further efforts at reunification would be
futile and ordered DSS to cease reunification efforts. The trial
court, therefore, ordered DSS to pursue a permanent plan of
adoption for A.F.W. and a concurrent permanent plan of adoption and
guardianship for A.B.W. Respondents filed timely notice of appeal.
Respondent-father first contends that the trial court erred by
failing to appoint him a guardian ad litem. Specifically,
respondent-father contends that a guardian ad litem should have
been appointed because he was “dominated by his wife” and had been
diagnosed with depression. We disagree.
Pursuant to North Carolina General Statutes, section 7B-602 _
applicable on the date the petition was filed _ a guardian ad litem
must be appointed to represent a parent “[w]here it is alleged that
the juvenile is a dependent juvenile . . . in that the parent is
incapable as the result of substance abuse, mental retardation,
mental illness, organic brain syndrome, or any other similar cause
or condition of providing for the proper care and supervision of
the juvenile.” N.C. Gen. Stat. § 7B-602(b) (2003). This statute
may be implicated when neglect is alleged and a parent's “mental
health issues and the child's neglect [are] so intertwined at times
as to make separation of the two virtually, if not, impossible.”
In re J.D., 164 N.C. App. 176, 182, 605 S.E.2d 643, 646, disc. rev.
denied, 358 N.C. 732, 601 S.E.2d 531 (2004). However, the trial
court is not required to appoint a guardian ad litem anytime a
“cause or condition” under section 7B-602(b) is alleged. See In reJ.A.A., 175 N.C. App. 66, 71, 623 S.E.2d 45, 48 (2005); In re H.W.,
163 N.C. App. 438, 447, 594 S.E.2d 211, 216, disc. rev. denied, 358
N.C. 543, 603 S.E.2d 877 (2004). Instead, the relevant inquiry is
whether there has been an allegation of dependency or of
respondent's incapability to parent. See In re D.H., 177 N.C. App.
700, 708, 629 S.E.2d 920, 924.25 (2006) (citing J.A.A., 175 N.C.
App. at 72, 623 S.E.2d at 48).
In the instant case, the juveniles were alleged to be
neglected, not dependent, and it was not alleged that respondent-
father was incapable of providing proper supervision and care for
the children as a result of any illness or condition listed in
section 7B-602. Although the petition noted DSS's concerns about
respondent-mother's mental health, the allegations in the petition
with respect to respondent-father concern his unwillingness, as
opposed to any inability, to appropriately parent the juveniles.
Although the petition did not allege dependency or incapacity,
this Court still “must consider whether the trial court had a duty
to appoint a guardian ad litem to represent respondent under Rule
17 of the Rules of Civil Procedure.” J.A.A., 175 N.C. App. at 72,
623 S.E.2d at 49. Pursuant to Rule 17,
[i]n actions or special proceedings when any
of the defendants are . . . incompetent
persons, whether residents or nonresidents of
this State, they must defend by general or
testamentary guardian, if they have any within
this State or by guardian ad litem appointed
as hereinafter provided; and if they have no
known general or testamentary guardian in the
State, and any of them have been summoned, the
court in which said action or special
proceeding is pending, upon motion of any of
the parties, may appoint some discreet personto act as guardian ad litem, to defend in
behalf of such . . . incompetent persons.
N.C. Gen. Stat. § 1A-1, Rule 17(b)(2) (2003). We review a trial
court's decision under Rule 17 for abuse of discretion. See J.A.A.,
175 N.C. App. at 73, 623 S.E.2d at 50.
Here, respondent-father argues in his brief that he is
“somewhat meek,” “overwhelmed,” and a “passive observer” dominated
by his wife. Respondent-father also notes that he was required by
the trial court to obtain a psychological assessment, which
indicated that respondent-father had been diagnosed with
depression. However, the mere fact that the trial court ordered a
psychological evaluation does not require the appointment of a
guardian ad litem. Further, although respondent-father obtained a
psychological evaluation indicating that he had been diagnosed with
depression, respondent-father testified that “anybody, any parent,
would be depressed over a situation like this.” Respondent-father
explained that treatment was not necessary and refused to obtain
additional court-ordered psychological evaluations, stating,
“[W]e've had one, and that wasn't good enough, so I figured that
another one wouldn't be good enough.” Ultimately, nothing in the
record “raise[s] a substantial question as to whether [respondent-
father] is non compos mentis,” and respondent-father, therefore,
fails to meets the standard for legal incompetency pursuant to Rule
17. Id. at 72, 623 S.E.2d at 49.
Accordingly, the trial court did
not err in failing to appoint a guardian ad litem for respondent-
father. Respondents next argue that certain findings of fact made by
the trial court are not supported by the evidence. “Appellate
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 S.J.M., __ N.C.
App. __, __, 645 S.E.2d 798, 801 (2007) (internal quotation marks
and citation omitted). We are “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 Montgomery, 311 N.C. 101, 110.11, 316 S.E.2d 246,
252.53 (1984). “If unchallenged on appeal, findings of fact 'are
deemed supported by competent evidence' and are binding upon this
Court.” In re J.M.W., __ N.C. App. __, __, 635 S.E.2d 916, 919
(2006) (quoting In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d
337, 340 (2003)).
In the case sub judice, both respondents assign error to
findings of fact numbers 28, 29, 31, and 33. Respondent-father
also assigns error to findings of fact numbers 16, 18, 34, 35, 37,
41, 42, 47, 48, and 49, and respondent-mother assigns error to
findings of fact numbers 21, 32, and 40.
As a preliminary matter, we note that both respondents failed
to present argument in their briefs with respect to finding of fact
number 31, and therefore, their assignments of error concerning
this finding are deemed abandoned. See N.C. R. App. P. 28(b)(6)
(2006). Additionally, respondent-father has presented no argument
with respect to findings of fact numbers 42, 48, and 49, andrespondent-mother has presented no argument in her brief with
respect to findings of fact numbers 33 and 40. Accordingly, these
assignments of error also are deemed abandoned. See id.
Furthermore, respondent-mother addresses findings of fact numbers
41, 42, 47, and 49 in her brief but has failed to reference in her
brief any assignments of error relating to these particular
findings of fact. See id. (“Immediately following each question
presented shall be a reference to the assignments of error
pertinent to the question . . . .”). Accordingly, we decline to
review respondent-mother's arguments related to findings of fact
numbers 41, 42, 47, and 49. See In re Foreclosure of Cole, 175 N.C.
App. 653, 661, 625 S.E.2d 155, 160 (2006) (holding that questions
not corresponding to the correct assignments of error will not be
reviewed).
First, respondent-father challenges finding of fact number 16,
in which the court found that
[f]ollowing the filing of the petition [on 7
April 2005], and prior to the adjudication of
this matter [by order entered 15 August 2006],
the [c]ourt entered interim orders in an
effort to prevent nonsecure custody of the
minor children. Most importantly, this
[c]ourt ordered that [A.B.W.] should miss no
school days, except for excused absences
documented by a licensed physician
specifically as to the illness and condition
and the severity that would necessitate
missing school. The parents failed to abide
by this [c]ourt's orders.
This finding of fact is fully supported by the evidence in the
record. Although the trial court ordered on 13 September 2005 that
A.B.W. “shall not incur any new unexcused absences or tardies fromschool,” both the guardian ad litem and DSS reports noted that
A.B.W. had continued to incur numerous unexcused absences and
tardies. The trial court, therefore, properly found that
respondents failed to abide by the court's interim orders.
Accordingly, respondent-father's assignment of error is overruled.
Respondent-father next challenges finding of fact number 18,
in which the court found that “ [t]he [c]ourt ordered that the
children be placed in the agency's nonsecure custody on October 14,
2005. [A.B.W.] was taken into the Department's physical custody
that day, but the parents hid [A.F.W.] from [DSS].” This finding
is fully supported by finding of fact number 19 _ to which
respondent-father does not assign error and, therefore, is binding
on this Court _ in which the trial court found that
[w]hen [A.F.W.] was located, with the
assistance of law enforcement, both parents
were present. [Respondent-father] had been
present for hearings when he testified under
oath that he had no knowledge of the child's
whereabouts, and he had been ordered to notify
[DSS] immediately if he became aware of the
child's whereabouts.
Respondent-father's assignment of error, therefore, is overruled.
Finally, respondent-father assigns error to the following
findings of fact:
34. [Respondents] have obtained no mental
health counseling.
35. [Respondents] have failed to participate
in or complete the Nurturing Parent Program.
. . . .
41. Although this [c]ourt has made it clear to
[respondents] what is necessary in order for
them to reunify with their children, both[respondents] have openly and adamantly
refused to do what the [c]ourt requires.
Their adamant refusal continues even today.
Both parents rigidly believe that they are
excellent parents and that no intervention is
necessary.
47. [Respondents] have flatly refused to
comply with this [c]ourt's orders. Their
refusal has persisted for over one year while
their children wait in foster care. Such
refusal would render any further efforts at
reunification futile and inconsistent with the
needs of the children for a safe, permanent
home within a reasonable period of time.
Respondent-father concedes in his brief that “[h]e just has not
done those tasks given to him,”
but contends that he was controlled
by respondent-mother and bases this argument upon finding of fact
number 37,
(See footnote 1)
in which the court found that respondent-father “is a
somewhat passive observer who does not appear to form any
independent thought, apart from the direction of [respondent-
mother].” Respondent-father, however, cannot justify his failure
to complete tasks required of him by the trial court on the grounds
that he “is a somewhat passive observer.” He concedes that he did
not complete the required tasks, and the record supports the
court's finding that respondent-father adamantly refused to comply
with court orders and DSS recommendations as noted supra. We hold
that competent evidence supports the trial court's findings, and
accordingly, these assignments of error are overruled.
With respect to respondent-mother's arguments, she first
assigns error to finding of fact number 21, which provides: This [c]ourt was aware of the evaluation of
[respondent-mother] by Dr. Santosa at the time
of the initial adjudication and disposition of
this matter, and did not find said evaluation
to be adequate. The [c]ourt found then, and
finds now, that the evaluation by Dr. Santosa
is primarily based on self-report, and is not
based upon independent fact-finding,
psychiatric or psychological testing, or
psychological data. The only assessment done
was a mental status exam. Thus, the [c]ourt
ordered at the time of the initial Disposition
that [respondent-mother] undergo a more
thorough psychological evaluation to be
followed by a psychiatric evaluation if deemed
appropriate.
Respondent-mother argues that this finding was not supported by the
evidence. She further contends that Dr. Santosa did not recommend
further treatment and that as a result, any attendant findings that
she had not followed the recommendations or obtained mental health
counseling as needed also were not based upon the evidence. We
disagree.
Prior to the adjudication, respondent-mother had been
evaluated by Dr. Santosa, and in the adjudicatory order, the trial
court found that
[t]he report received regarding [respondent-
mother] from Dr. Rudy Santosa appears to be a
self-reporting evaluation and not by any means
a full psychological evaluation. It would
appear that Dr. Santosa took [respondent-
mother's] word as to the remission of her
depression and her word that her anxiety was
caused by the agency's involvement with her.
The evaluation does not indicate a full
understanding of all the circumstances
surrounding the removal of these children. It
does not appear that Dr. Santosa was aware of
the many factors this [c]ourt has considered
and the efforts made by the agency to prevent
removal.
The trial court, therefore, ordered respondent-mother to undergo a
“full psychological work-up and testing.” Subsequently, DSS
scheduled appointments for respondent-mother to undergo the
psychological evaluation, but respondent-mother failed to attend
any of the appointments. At the permanency planning review
hearing, respondent-mother conceded that she had been ordered to
have a full psychological evaluation, but asserted that she already
had been evaluated _ i.e., by Dr. Santosa _ and that she would not
undergo any further evaluation. Respondent-mother further admitted
that she had been asked by DSS to go to therapy sessions and that
she had refused. The trial court's findings, therefore, were
supported by competent evidence, and accordingly, this assignment
of error is overruled.
Respondent-mother also assigns error to finding of fact number
32, in which the trial court found that respondents “have failed to
obtain psychological evaluations as ordered by the [c]ourt, even
though [DSS] was ordered to pay for said evaluations.” Respondent-
mother, however, contends that “[w]hile it is true that
[respondent-mother] did not obtain a third psychological evaluation
after the trial court ordered her to, it is also true that she
obtained two psychological evaluations during her involvement with
[DSS].”
Respondent has not contended that the trial court abused
its discretion in ordering a third psychological evaluation. See,
e.g., In re L.B., __ N.C. App. __, __, 639 S.E.2d 23, 33 (2007).
Accordingly, as respondent-mother concedes that she did not obtainthe court-ordered psychological evaluations
, this assignment of
error is overruled.
Next, both respondents assign error to finding of fact number
28, in which the trial court found that respondents “have failed to
make any substantial or significant progress toward compliance with
the case plan or the [c]ourt's prior orders.” Respondents contend
that this finding was not supported by competent evidence. We
disagree.
On 17 October 2005, the trial court entered a non-secure
custody order after respondent-mother consistently disobeyed the
court's orders to establish care for the children with a family
doctor and not use the emergency room as the juvenile's health care
provider. Upon entry of the non-secure custody order, respondents
concealed A.F.W.'s whereabouts from DSS. Respondents failed to
comply with the trial court's adjudication and disposition order,
which required, inter alia, that they obtain a full psychiatric
evaluation, attend individual regular therapy, and successfully
complete the Nurturing Program. As explained by the guardian ad
litem in its report for the permanency planning hearing, “[i]n
short, neither [respondent-mother] nor [respondent-father] has made
any progress toward rectifying the problems that exist in their
family.” Similarly, DSS noted in its report for the permanency
planning hearing that
[b]oth [respondents] have been ordered to do
specific tasks and have not complied.
[Respondent-mother] continues to verbalize
distrust of the agency or acknowledge the
reasoning behind the tasks ordered of her.
[Respondent-father] seems to do what is put onhim to do by [respondent-mother]. He will
agree in private with the social worker to
attend the psychological evaluation[] and
nurturing class but will not go.
The trial court's finding that respondents failed to comply with
their case plan and prior court orders was supported by competent
evidence. Accordingly, respondents' assignment of error is
overruled.
Both respondents also contend that the trial court erred in
making finding of fact number 29, in which the trial court found
that respondents failed to obtain independent housing. We
disagree.
Since the filing of the petition, respondents have moved
several times. On 28 November 2005, respondents' landlord informed
DSS that he was in the process of evicting respondents. On 6
December 2005, respondent-mother testified that she had been living
with friends and in motels while attempting to hide A.F.W. from
social workers. Subsequently, respondents proposed Martha McCall,
respondent-mother's aunt, as a possible placement for the
juveniles. During a homestudy, McCall reported that respondents
were “working on getting their own place” and that respondent-
mother “stays between [McCall's] home, her sister's home, and her
brother's home.” DSS declined to recommend McCall as a placement
option.
As of 22 May 2006, respondents lived with Angela Hood,
respondent-mother's sister. The adjudication and disposition order
required respondents to comply with the terms of a case plan,
which, in turn, required respondents to obtain stable housing. However, at the time of the permanency planning review hearing,
respondents had resumed living with McCall, whom DSS had declined
to recommend as a placement option. Although respondent-mother has
claimed to be an owner of the home in which she purported to live,
it is undisputed that respondents have lived in numerous locations
since the filing of the petition
. The trial court's finding that
respondents had not obtained independent housing was supported by
competent evidence, and accordingly, respondents' assignment of
error is overruled.
In their final argument with respect to the trial court's
findings of fact, both respondents assign error to finding of fact
number 33, in which the trial court found that respondents “have .
. . failed to follow any recommendations from psychological
evaluations, including psychiatric evaluations.” This finding,
however, is based upon finding of fact number 32, in which the
court found that respondents “have failed to obtain psychological
evaluations as ordered by the [c]ourt, even though [DSS] was
ordered to pay for said evaluations.” Respondent-father failed to
assign error to this finding of fact, and as discussed supra,
respondent-mother conceded that she has failed to obtain court-
ordered psychological evaluations. Accordingly, respondents'
assignment of error is overruled.
Finally, both respondents assign error to the trial court's
conclusions of law. Specifically, they argue that the trial court
erred by (1) ceasing reunification efforts, (2) adopting a
permanent plan of adoption for A.F.W., and (3) adopting aconcurrent permanent plan of adoption and guardianship for A.B.W.
We disagree.
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) (2003).
The trial court may “order the cessation of reunification efforts
when it finds facts based upon credible evidence presented at the
hearing that support its conclusion of law to cease reunification
efforts.” In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137
(2003). On appeal from an order ceasing reunification efforts,
this Court must determine whether the trial court made appropriate
findings, whether the findings are based upon credible evidence,
whether the findings of fact support the trial court's conclusions,
and whether the trial court abused its discretion with respect to
disposition. See id. at 477.78, 581 S.E.2d at 137.
In its permanency planning review order, the trial court made
fifty separate findings of fact. In its findings, the trial court
noted: (1) the extensive history between respondents and DSS; (2)
respondents' continued failure to ensure that A.B.W. attended
school regularly; (3) respondents' lack of cooperation with DSS;
and (4) respondents' “adamant refusal” to do what the trial court
required in order for respondents to be reunified with their
children. The trial court further found that respondents' refusal
to comply with the trial court's orders rendered reunification
efforts futile and was inconsistent with the juveniles' needs for
a safe, permanent home within a reasonable period of time. Finally, the trial court found that the current placement for the
children was appropriate, that A.F.W. was “doing well,” and that
A.B.W. was “doing as well as can be expected.”
Based upon its findings, the trial court concluded:
2. That [DSS] has exercised reasonable efforts
towards reunification of the minor children
with [respondents], but reunification is not
in the best interest of the minor children at
this time.
3. That further efforts toward reunification
with either [respondent] would be futile and
inconsistent with the juveniles' need for a
safe permanent home within a reasonable period
of time. Therefore, reunification efforts
should cease.
4. There are no relatives who are willing and
able to provide proper care and supervision of
the children in a safe home.
5. That return to the home of [respondents] is
not in the best interest of the children at
this time, and is contrary to the health,
safety and welfare of the children.
6. That the most appropriate permanent plan is
one of adoption. The current barriers to
adoption are the termination of parental
rights, and the potential difficulties in
placing [A.B.W.] for adoption, due to her age
and her loyalty to [respondents]. For that
reason, [A.B.W.] should also have a concurrent
plan of guardianship.
The trial court, therefore, ordered that (1) custody of the
juveniles remain with DSS; (2) reunification efforts cease; (3) the
permanent plan for A.F.W. be changed to adoption; and (4) the
permanent plan for A.B.W. be changed to a concurrent permanent plan
of adoption and guardianship.
The record before this Court demonstrates that the trial court
made sufficient findings of fact supported by competent evidenceand that the trial court did not abuse its discretion in ordering
the cessation of reunification efforts between respondents and the
juveniles. Accordingly, we affirm.
Respondents' remaining assignments of error not argued in
their briefs are deemed abandoned. See N.C. R. App. P. 28(b)(6)
(2006).
Affirmed.
Judges STEELMAN and STROUD concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***