Opinion
No. COA10-1496
Filed 5 July 2011 This case not for publication
Appeal by respondents from order entered 14 October 2010 by Judge W. Rob Lewis II in Bertie County District Court. Heard in the Court of Appeals 24 May 2011.
Gillam and Gillam Attorneys, P.A., by M. Braxton Gillam III, for petitioner-appellee. Harrington, Gilliland, Winstead, Feindel Lucas, LLP, by Anna S. Lucas, for respondent-appellant mother. Lisa Skinner Lefler for respondent-appellant father. Ivey, McClellan, Gatton Talcott, L.L.P., by Charles M. Ivey, IV, for guardian ad litem.
Bertie County No. 09 J 22.
Respondent mother and respondent father appeal from an order of the district court granting custody of J.W. Jr. ("Jordan") to non-relative caregivers. Respondent parents argue that the trial court erred in finding that it is not possible for Jordan to return to either of their homes within the next six months. The record, however, indicates this finding was properly supported by other findings, which are either unchallenged or supported by the evidence.
The pseudonym "Jordan" is used throughout this opinion to protect the minor's privacy and for ease of reading.
In addition, although respondent parents argue that the trial court erred in considering Jordan's best interests without first finding that respondent parents were unfit to assume custody or had acted inconsistently with their constitutional right to parent, respondent parents failed to raise this constitutional issue below and have, consequently, waived appellate review of this issue. We, therefore, affirm.
Facts
The Hyde County Department of Social Services ("Hyde County DSS") first became involved with Jordan's family in March 2008, when Hyde County DSS received a report that respondent mother was arrested and no one was available to care for Jordan, who was about 11 months old at the time. Hyde County DSS arranged for Jordan's placement with his maternal grandmother and began working with the family. Hyde County DSS subsequently assumed non-secure custody of Jordan on 23 April 2008 after learning that the maternal grandmother had left Jordan unsupervised for several hours.
On 25 April 2008, Hyde County DSS filed a petition alleging that Jordan was a neglected and dependent juvenile. Jordan was placed with his maternal great-grandmother. Jordan remained in that placement until the great-grandmother's death on 14 August 2008. Hyde County DSS then placed Jordan with his maternal great-aunt.
Following a hearing on 8 January 2009, at which time respondent father was incarcerated in New York on charges of possession of cocaine, the trial court entered an adjudication order concluding that Jordan was a neglected and dependent juvenile. The court noted in the order that both respondent parents acknowledged that Jordan was neglected and dependent and lived in an environment without proper care or supervision. In a separate disposition order entered the same day as the adjudication order, the trial court continued custody of Jordan with Hyde County DSS and ordered that placement continue with the maternal great-aunt.
The trial court ordered respondent mother to participate in ongoing substance abuse treatment, to continue participating in parenting classes and other counseling, to obtain and maintain stable housing, and to become gainfully employed as soon as reasonably practical. The trial court granted respondent mother supervised visitation with Jordan and directed DSS to continue reasonable efforts toward returning Jordan to his home.
On 7 May 2009, Jordan was placed with "the Eatons," non-relative friends of Jordan's maternal great-aunt. The change of placement was made with the consent of the maternal great-aunt because she was having difficulty managing Jordan's care.
"The Eatons" is a pseudonym used to protect the minor's privacy.
From 5 August 2009 through 2 March 2010, respondent mother was incarcerated after violating probation she was serving as a result of a conviction of forgery and uttering. Prior to her incarceration, respondent mother struggled with drug addiction and was unable to provide adequate care for Jordan and her other children.
On 20 October 2009, the trial court entered an order transferring the case to Bertie County because, from the start of the case, Jordan had been placed in Bertie County and neither of the respondent parents had resided in Hyde County. The court ordered that Bertie County Department of Social Services ("Bertie County DSS") assume custody of Jordan upon its receipt of the juvenile file and that placement continue with the Eatons.
The Bertie County district court held a permanency planning hearing on 12 February 2010. In an order entered 10 March 2010, the court continued custody with Bertie County DSS and ordered that the permanent plan for Jordan would be custody with a court-approved guardian with an alternate plan of custody with respondent father.
On 10 September 2010, the trial court held another permanency planning hearing. Jordan was three years old at the time. In an order entered 14 October 2010, the court made the following findings of fact. Prior to the initial adjudication, there were several incidents of domestic violence between respondent parents. Respondent mother once obtained a domestic violence order against respondent father, but she violated the order by sneaking out of shelters to see respondent father.
Since respondent mother's release from prison, she has resided at Robeson Women's Health Care, a residential housing facility for pregnant women or mothers with a child under the age of one who are trying to recover from substance abuse. Respondent mother lives at the facility with an infant son. Jordan's other younger brother lives with respondent father.
The trial court found that after the 14 May 2010 permanency planning hearing, visitation between respondent parents and Jordan had been "sporadic at best." According to the trial court, respondent parents' sporadic visits and lack of communication with Jordan "demonstrate[d] a continued failure to prioritize the interests and needs of, and attention to, the juvenile." The trial court determined that it was not possible for Jordan to return to the home of either parent immediately or within the next six months, that further efforts to eliminate the need for out-of-home placement would be inconsistent with Jordan's best interests, and that it was in Jordan's best interests to be in the custody of the Eatons. The trial court ordered that custody of Jordan be given to the Eatons and granted supervised visitation to respondent parents. Respondent parents timely appealed from this order.
I
Respondent parents contend that the trial court erred in giving custody of Jordan to the Eatons. 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) (2009). Appellate review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and whether the findings support the conclusions of law. In re J.V. M.V., 198 N.C. App. 108, 112, 679 S.E.2d 843, 845 (2009).
A trial court's findings of fact in a permanency planning order are conclusive on appeal when they are supported by competent evidence, even if some other evidence supports findings to the contrary. In re C.E.L., 171 N.C. App. 468, 474, 615 S.E.2d 427, 430 (2005). "Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal." Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
When a juvenile is not returned home at the conclusion of a permanency planning hearing, the trial court must consider several criteria and make written findings of fact regarding any of the criteria that are relevant. N.C. Gen. Stat. § 7B-907(b). One of the criteria that the court must consider is "[w]hether 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[.]" N.C. Gen. Stat. § 7B-907(b)(1). With respect to N.C. Gen. Stat. § 7B-907(b)(1), the trial court made the following finding of fact:
It is not possible for the juvenile to be returned to the home of either parent immediately or within the next six months. The mother's enrollment in Robeson Women's Health two-year transitional program makes placement of the juvenile with her impossible. In addition, the sporadic visits and lack of communication with the juvenile by either parent since the last permanency planning hearing demonstrate a continued failure to prioritize the interests and needs of, and attention to, the juvenile. This Court has previously addressed concerns about the unresolved volatility of the relationship between the mother and father, the history of domestic violence by each parent, and their lack of long term stability.
Respondent parents make a number of challenges to this finding of fact. We first consider respondent mother's assertion that there was no evidence to support the finding that her enrollment at Robeson Women's Health Care "makes placement of the juvenile with her impossible." In making this argument, respondent mother overlooks finding of fact 19, in which the trial court found that Robeson Women's Health Care "is a residential housing facility for pregnant women or mothers with a child under the age of one, who are trying to recover from substance abuse and to become a viable member of society." (Emphasis added.) The court also noted in its findings that Jordan was three years old at the time of the permanency planning hearing. Taken together, these unchallenged findings show that three-year-old Jordan is too old to live with respondent mother at Robeson Women's Health Care, as the trial court found.
Respondent mother also argues that there was no evidence to support the finding that her sporadic visits and lack of communication with Jordan since the last permanency planning hearing demonstrate a continued failure to prioritize Jordan's interests and needs. Respondent mother does not dispute that she made sporadic visits and failed to maintain regular communication with Jordan. She insists, however, that the evidence showed that much of her time was spent in group meetings and therapy, that she has not been able to work in the current stage of the program, and that she does not have the resources to visit Jordan.
While we commend respondent mother for her recovery efforts, we recognize that "the trial court in child custody proceedings is generally vested with broad discretion as to which facts to consider and how much weight to accord them," In re A.K., 360 N.C. 449, 456, 628 S.E.2d 753, 757 (2006), and to determine "`the reasonable inferences to be drawn'" from the evidence, Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994) (quoting Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33 (1968)). See In re Montgomery, 311 N.C. 101, 112, 316 S.E.2d 246, 253 (1984) (stating that trial court's "observation of the parties and the witnesses provided him with an opportunity to evaluate the situation that cannot be revealed on printed page"). Having weighed the evidence concerning respondent mother's circumstances and failure to regularly visit or communicate with her son, the trial court acted within its discretion in drawing the reasonable inference that respondent mother failed to prioritize Jordan's interests and needs.
Respondent father does not specifically challenge the sufficiency of the evidence to support the finding that his sporadic visits and lack of communication showed he failed to prioritize Jordan's interests. Instead, he points to evidence he claims showed that his failure to visit was not his fault. He argues that the Eatons were uncooperative and made his visitation "difficult if not impossible." The trial court, however, necessarily determined that the evidence relied upon by respondent father was not credible and/or was not entitled to great weight. We are not allowed to revisit that determination on appeal.
Respondent mother and respondent father both argue that the court erred in finding that it was not possible for Jordan to be returned to the home of either parent within six months. As for respondent mother, the court found that she entered the Robeson Women's Health Care program after her release from prison in March 2010 and that the program is a two-year program. The permanency planning hearing occurred in September 2010, meaning that respondent mother had approximately 18 months left in the program, during which it was impossible for Jordan to live with her.
As for both parents, we have already determined that the trial court did not err in finding that they continued to fail to prioritize Jordan's interests and needs. The trial court also noted that it had concerns about the unresolved volatility of the relationship between respondent parents, their history of domestic violence, and their lack of long-term stability. A Bertie County DSS social worker testified that respondent parents still have a problematic relationship — in May 2010, respondent father made repeated telephone calls to respondent mother to the point that she had to contact law enforcement to try to make him stop. The social worker also testified that respondent father had engaged in a domestic dispute with another woman — not respondent mother — at a Burger King since the last permanency planning hearing. We hold that the trial court's conclusion that Jordan could not return to the home of either respondent mother or respondent father immediately or within the next six months was supported by the trial court's other findings and the evidence.
Although both respondent parents argue that this finding could not be supported given the evidence that they have each made progress and that one of Jordan's younger brothers lives with respondent mother and the other younger brother lives with respondent father, these arguments fail to conform to the applicable standard of review. Even if there was evidence that respondent parents were capable of caring for one of Jordan's siblings, the trial court was not required to determine that either of them could also care for Jordan.
Having found no merit to respondent parents' arguments, we hold that the trial court did not err in determining that it was not possible for Jordan to be returned to the home of either parent immediately or within the next six months. See In re B.G., 197 N.C. App. 570, 576, 677 S.E.2d 549, 554 (2009) (where trial court's findings sufficiently supported and explained basis for trial court's determination that placement with respondent within next six months would not be in child's best interest, and child should be placed in another permanent living arrangement, finding no error with regard to application of N.C. Gen. Stat. § 7B-907(b)).
II
Respondent parents also argue that the trial court erred when it considered Jordan's best interests without first finding that respondent parents were unfit to assume custody or that they had acted inconsistently with their constitutionally protected status as parents. As respondent parents correctly point out, "to apply the best interest of the child test in a custody dispute between a parent and a nonparent, a trial court must find that the natural parent is unfit or that his or her conduct is inconsistent with a parent's constitutionally protected status." In re B.G., 197 N.C. App. at 574, 677 S.E.2d at 552 (emphasis added). See also Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997) (holding best interests test may be applied without offending due process rights if court finds conduct inconsistent with parent's constitutionally protected status).
It is, however, well established that "[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal." State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001). The Court has applied this rule in custody cases. See, e.g., In re B.G., 197 N.C. App. at 573, 677 S.E.2d at 552 (noting that in previous opinion, Court could not determine if issue whether trial court's findings and conclusions were inconsistent with parent's constitutional rights had been raised below; recording device had malfunctioned at trial, parties did not include counsel's arguments in narration of proceedings, and trial court's order did not address issue; thus, Court remanded for issue to be addressed in first instance by trial court). In contrast to In re B.G., here, the record contains a transcript of the permanency planning hearing. The transcript indicates that neither respondent mother nor respondent father brought this constitutional issue to the attention of the trial court, even after the trial court expressly asked their counsel whether they wanted the court to make any additional findings of fact in its order. Consequently, respondent parents have waived review of the issue on appeal. We, therefore, affirm the trial court's order.
Affirmed.
Judges McGEE and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).