Opinion
No. COA03-302
Filed May 4, 2004 This case not for publication
Appeal by respondent father from order entered 3 October 2002 by Judge John W. Dickson in Cumberland County District Court. Heard in the Court of Appeals 13 January 2004.
Staff Attorney John F. Campbell, for Cumberland County Department of Social Services petitioner appellee. Katharine Chester for respondent appellant.
Cumberland County No. 01 J 82-83.
Respondent L.E. appeals the trial court's order which gave physical and legal custody of his minor children, J.O. and J.O., to Vardell and Jennifer Chavis. The underlying facts are as follows: J.O. and J.O. are twins that were born on 3 October 2000. On 24 January 2001, a social worker visited the home of P.T., the children's mother, who is not a party to this appeal. The social worker knocked on the door and could hear that the children were inside. The social worker waited for about 20 minutes before calling the police. After the police arrived, officers continued to knock on the door. Eventually, P.T. answered the door. P.T. told the social worker that she had been using cocaine and that the children should probably be placed with a relative. On 7 February 2001, DSS filed a petition alleging that the minor children were neglected and dependent. P.T. was served with a summons and notice of hearing, but the father was not served, because at that time, the identity of the father was uncertain.
On 22 March 2001, an order for nonsecure custody was issued, and the children were placed with Vardell and Jennifer Chavis, who are P.T.'s maternal cousins. On 14 May 2001, P.T. identified L.E. as the putative father of the children. L.E. was subsequently served with a copy of the petition and a summons. Another order for nonsecure custody was entered, and placement of the children remained with the same relatives.
On 18 October 2001, the court entered an order finding that the juveniles were neglected and dependent. The court further determined that the mother's whereabouts were unknown, and the putative father was required to submit to paternity testing on 9 October 2001. There is conflicting information in the record with regard to the completion of the paternity testing. An order entered 18 January 2002 indicated that paternity results were still pending. However, the lab report itself states that the test was completed and received in Cumberland County on 9 November 2001.
On 5 April 2002, the court entered a review order which authorized visitation for L.E. and his girlfriend upon the completion of two consecutive negative drug tests. Furthermore, L.E. and his girlfriend were required to enroll in and complete parenting classes. A social worker indicated that L.E. had changed jobs at least four times and was unable to maintain a stable residence. The social worker also noted that L.E. and his girlfriend failed to submit to random drug tests on a number of occasions. On 24 July 2002, the court held a permanency planning hearing and awarded legal and physical custody to Vardell and Jennifer Chavis.
Respondent-father appeals. On appeal, respondent argues that the trial court erred by (1) failing to comply with N.C. Gen. Stat. § 7B-907(b)(2003), (2) making findings of fact that were not supported by competent evidence, (3) refusing to make reasonable efforts to work with him, and (4) neglecting to consider changed conditions. We disagree and affirm the decision of the trial court.
I.N.C. Gen. Stat. § 7B-907(b)
Respondent first argues that the trial court erred by failing to address the criteria delineated in N.C. Gen. Stat. § 7B-907(b). A trial court is required to conduct a permanency planning hearing in every case where custody of a child has been removed from a parent. N.C. Gen. Stat. § 7B-907(a). The purpose of the hearing is "to develop a plan to achieve a safe, permanent home for the juvenile within a reasonable period of time." Id. The trial court must "consider information from the parent, the juvenile, the guardian, any foster parent, relative or preadoptive 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). Ifthe juvenile is not returned home, the court must consider certain criteria and make written findings on those factors that are relevant. Id.
Respondent contends that the trial court failed to address the first criterion of N.C. Gen. Stat. § 7B-907(b):
(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.
The trial court articulated why it was not in the juveniles' best interests to return home immediately or within the next six months. Respondent did not comply with orders of the court regarding random drug testing and parenting classes. More importantly, the court believed that it would be in the juveniles' best interests to remain with Vardell and Jennifer Chavis, the maternal cousins, rather than living with respondent. We conclude that the trial court sufficiently addressed this first criterion.
Respondent also claims that the trial court neglected to evaluate the second consideration:
(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 and responsibilities which should remain with the parents.
Id. The trial court did consider the issues of guardianship and custody. Since living with the maternal cousins was in the juveniles' best interests, legal and physical custody was given to Vardell and Jennifer Chavis. The trial court also addressedrespondent's rights and responsibilities. Respondent was granted visitation on alternating weekends for approximately four hours per visit. The trial court also recommended that respondent meet with Vardell Chavis to arrange a more specific visitation schedule. Finally, respondent was reminded of the importance of complying with court orders regarding random drug testing and parenting classes. Because the trial court considered the statutory requirements, we reject this assignment of error.
II. Sufficiency of the Findings of Fact
Respondent also contends that a number of the trial court's findings of fact were not supported by competent evidence. On appeal, "Findings of fact are conclusive if supported by any competent evidence." In re Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991).
Respondent takes issue with finding of fact 5 which stated: "The Respondent Father left the minor children with the Respondent Mother who was addicted to cocaine." The fact that the juveniles' mother used cocaine was well documented. She tested positive for cocaine on 25 January 2001, told a social worker that she used drugs, and agreed that her children should be placed with a relative. There is also some evidence that respondent left the children with their mother:
Q. — Before the children were taken, again, you were suspecting [the mother of the children] was using drugs and you were suspecting she was prostituting?
A. Yes, sir.
Q. But yet you left the children with her?
A. I did not know there was nothing I could do about it. Like I said, she was staying with her mama. When I left and went to Pennsylvania, she was still staying with her mother.
We believe that this is competent evidence to support finding of fact 5.
Respondent suggests that finding of fact 6 was erroneous. Finding of fact 6 states, "The juveniles were adjudicated neglected and dependent on August 21, 2001 and their custody was placed with the Cumberland County Department of Social Services." A review of the record indicates that this finding is accurate. The juveniles were found to be neglected and dependent, and DSS took custody on 21 August 2001. Accordingly, this finding of fact is supported by competent evidence.
Respondent posits that finding of fact 7 is inaccurate because he substantially complied with court orders involving drug testing and parenting classes. Finding of fact 7 concludes: "The Respondent Father has not complied with the orders of the Court regarding random drug testing and parenting classes."
With regard to the issue of drug testing, there is some evidence that respondent has not been fully cooperative. A DSS social worker, Beverly Young, reported that respondent and his girlfriend agreed to attend a drug test on 19 April 2002. However, after stating that they did not have gas money to travel to Fayetteville on that day, respondent and his girlfriend purchased lunch and paid a deposit on their family portraits. Respondent andhis girlfriend also failed to show up for a drug test on 9 May 2002 "due to their work schedules." We believe that this is competent evidence which supports the trial court's conclusion that respondent has not participated fully with the drug-testing requirements.
On the issue of parenting classes, the record contains conflicting evidence. Respondent and his girlfriend assert that they attended parenting classes at Palmer Prevention, Inc. (Palmer). However, a representative from the Guardian ad Litem program, Suzanne Box, testified that she spoke to a counselor at Palmer. The counselor told Box that respondent's girlfriend attended the classes after an altercation with her seventeen-year-old daughter and that respondent merely tagged along. There was also disagreement about whether attending this class would comply with the trial court's direction because Palmer specializes in "teaching youth between the ages of 5-17, decision-making skills, social skills, and rewarding positive behavior." Furthermore, Palmer's "mission is to prevent, delay, or reduce the use of alcohol and other drugs among our youth."
We do not criticize respondent for going to the class at Palmer. Indeed, we believe that respondent can benefit from a wide range of social services. On the other hand, the issue of whether respondent's attendance satisfies the requirement of completing a parenting class is a separate matter. Based on the evidence in the record, the trial court was free to conclude that respondent did not comply with this order. Palmer's mission is directed athelping troubled youth, rather than troubled parents. Furthermore, it is not clear whether any of the programs at Palmer could reasonably be described as a parenting class. Because there was competent evidence in the record to support this finding, this assignment of error is meritless.
III. Reasonable Efforts
In his third assignment of error, respondent argues that the trial court did not adhere to the purpose of dispositions in juvenile actions. Respondent further criticizes the court and DSS for not making reasonable efforts to work with him.
According to N.C. Gen. Stat. § 7B-900 (2003):
The purpose of dispositions in juvenile actions is to design an appropriate plan to meet the needs of the juvenile. . . . Thus, the court should arrange for appropriate community-level services to be provided to the juvenile and the juvenile's family in order to strengthen the home situation.
In spite of respondent's claims to the contrary, the record is replete with examples of DSS's attempts to assist the father. When respondent had a number of job switches and residency changes, social workers sought to verify that respondent had a stable residence and consistent employment. DSS also made random drug testing available for respondent, even though respondent did not always show up for the tests. Finally, social workers arranged for respondent to visit with the children. We see no legal merit in this argument. Furthermore, we unequivocally reject any suggestion that the courts or DSS somehow failed to help this respondent. Therefore, this assignment of error is rejected.
IV. Changed Conditions
Respondent contends that the trial court erred by failing to consider changed conditions. We disagree.
This Court has indicated that in permanency planning hearings the trial court must "consider any evidence of changed conditions." In re Eckard, 148 N.C. App. 541, 546, 559 S.E.2d 233, 236, disc. review denied, 356 N.C. 163, 568 S.E.2d 192 (2002). We believe that the trial court did consider changed conditions. In fact, the court stated, "The Respondent Father has made strong efforts lately and the Court has no doubt that the Respondent Father loves the minor children." (Emphasis added.) This assignment of error is overruled.
We have carefully considered respondent's other arguments and believe that they are without merit. Accordingly, the decision of the trial court is
Affirmed.
Judges WYNN and TIMMONS-GOODSON concur.
Report per Rule 30(e).