Opinion
No. COA08-1513.
Filed June 2, 2009.
Scotland County Nos. 03J122, 03J123, 05J96, 07J42.
Appeal by Respondent-mother from orders entered 10 July 2008 by Judge Regina M. Joe in Scotland County District Court. Heard in the Court of Appeals 11 May 2009.
Law Offices of Lisa D. Blalock, PLLC, by Lisa D. Blalock, for Petitioner Scotland County Department of Social Services. DeCillis Turrentine, PLLC, by Karlene S. Turrentine, for Respondent-mother. Pamela Newell Williams for guardian ad litem.
I. Procedural and Factual Background
Respondent-mother appeals from orders entered 10 July 2008 granting guardianship of her four minor children to caretakers. After careful review, we affirm the orders of the trial court in cases 03 J 123, 05 J 96, and 07 J 42, and dismiss as to 03 J 122.
The fathers of the children are not parties to this appeal.
Respondent is the biological mother of B.C., born in 2001, B.C.2, born in 2003, J.B., born in 2005, and J.D., born in 2006. Scotland County Department of Social Services ("DSS") filed juvenile petitions as to B.C. and B.C.2 on 30 September 2003, alleging neglect based on Respondent's drug use. DSS was granted nonsecure custody of the two children the same day. On 30 October 2003, Respondent entered into a consent judgment whereby B.C. and B.C.2 were adjudicated neglected. Based on this adjudication, the trial court granted DSS legal and physical custody of the two children, and approved placement of the children in the home of their paternal grandmother, Patricia Campbell. The court also ordered that Respondent work with DSS to address the following: (1) substance abuse treatment and inpatient treatment; (2) maintaining stable housing and employment; and (3) maintaining contact with DSS once a week and cooperating with DSS. The adjudication and dispositional orders were entered 18 December 2003.
At a review hearing held on 11 May 2004, the trial court ordered that physical and legal custody of the children remain with DSS but that the children be placed with Respondent on a trial basis. On 14 July 2004, the trial court ordered legal and physical custody of the two children returned to Respondent, and DSS was relieved of any further involvement in the cases.
Based on a domestic violence incident in Respondent's home involving Respondent and her boyfriend, the father of J.B., DSS again filed juvenile petitions on 6 September 2005. Respondent was observed to be drunk, and B.C.2 sustained an injury causing a swollen left eye. Based on this incident, DSS filed petitions as to B.C. and J.B. alleging neglect in that they lived in an environment injurious to their welfare, and a petition as to B.C.2 alleging abuse and neglect. On 8 November 2005, Respondent entered into consent judgments adjudicating B.C. and J.B. neglected, and B.C.2 neglected and abused. In the dispositional orders entered 3 January 2006, the trial court allowed Respondent to retain legal and physical custody of all three children, but ordered her to address the following issues in a family services agreement with DSS: (1) maintain a safe and stable home; (2) maintain a home free from domestic violence and obtain an assessment from a domestic violence center and follow all recommendations; (3) submit to random drug screens; and (4) follow recommendations for treatment and medication.
At a review hearing held 2 February 2006, the trial court determined that Respondent had made progress on her plan in that no domestic violence had occurred, the home was safe and stable, and Respondent had tested negative for controlled substances. The trial court concluded that since reunification had occurred, DSS was relieved of any further involvement in the cases.
On 2 May 2007, DSS filed new juvenile petitions alleging neglect of all four children. The petitions alleged that Respondent continued to use cocaine and was not following through with services provided by DSS. The petition also alleged that J.B. was scheduled for outpatient surgery on 10 April 2007, but it took DSS over two weeks to locate Respondent to have paperwork signed for the surgery. All four children were adjudicated neglected with Respondent's consent at a 24 January 2008 hearing and the adjudication orders were entered on 21 February 2008. The dispositional stage of the hearing began on 24 January 2008 and was continued to 1 May 2008. The trial court found that Respondent continued to have substance abuse problems, but was not participating in treatment. Although she checked in to a substance abuse treatment center on 3 October 2006, she was discharged on 21 March 2007 for noncompliance and for inappropriate behavior. From 21 March 2007 to 16 January 2008, Respondent did not participate in substance abuse treatment, and continued to test positive for Xanax, a medication for which she could not produce a prescription. She also tested positive for benzodiazepines on 2 April 2008, and did not show up for a drug screen scheduled for 9 April 2008. Additionally, contrary to her case plan, Respondent had not: (1) participated in domestic violence counseling; (2) cooperated and maintained contact with DSS; or (3) continued visiting regularly with the children. The trial court ordered that physical and legal custody of B.C. and B.C.2 be given to Campbell, with whom B.C. and B.C.2 had been living since 14 August 2006, and that physical and legal custody of J.B. and J.D. be given to Kenyatta Covington, with whom J.B. and J.D. had been living since 14 August 2006. The court determined that further reunification efforts would be futile, and relieved DSS of any further efforts. The dispositional orders, one for each child, were entered 10 July 2008.
A permanency planning review hearing was held on 29 May 2008. On 10 July 2008, the trial court entered separate permanency planning orders for B.C., J.B., and J.D. finding, inter alia: (1) Respondent had not made any contact with DSS since 28 April 2008; (2) Respondent had not addressed any of the issues listed in previous orders as conditions for regaining custody of the children, including substance abuse treatment, drug screens, mental health counseling, maintaining a stable home and employment, cooperating with DSS, and visiting with the children; and (3) Respondent had left her youngest child, not a subject of this action, with a family member in February 2008 with no apparent intention to retrieve the child. The court also found that DSS's permanent plan for the children was custody with their respective caretakers, and found that it was in the best interests of the children to keep them in their current placements and allow visitation with Respondent. The trial court ordered legal and physical custody of B.C. to remain with Campbell, and designated Campbell as the permanent caretaker and guardian of B.C. The trial court ordered legal and physical custody of J.B. and J.D. to remain with Covington, and designated Covington as the permanent caretaker and guardian of J.B. and J.D. Finally, the trial court determined that further reviews would not be necessary. From the permanency planning orders, Respondent appeals.
Although the transcript of the 29 May 2008 proceedings reveals that the trial court considered the permanent plan for all four children, there is no permanency planning order in the record for B.C.2.
The transcript reveals that the trial court orally ordered legal and physical custody of B.C.2 to remain with Campbell.
II. Discussion
We first address a motion filed by DSS to dismiss Respondent's appeal pursuant to Rule 34 of the North Carolina Rules of Appellate Procedure. In its motion, DSS alleged that Respondent's brief failed to include a cover page, a subject index, a table of authorities, and verbatim portions of the transcript relied upon in Respondent's brief, as required by Rules 26 and 28. However, by order entered 19 March 2009, this Court granted Respondent's motion to amend her brief to include a cover page, a subject index, and a table of authorities, thus substantially curing the alleged violations of Rules 26 and 28. DSS also alleged that Respondent's appeal was "not well grounded in fact and warranted by existing law[.]" N.C. R. App. P. 34 (a)(1). We disagree with this contention and, thus, will consider the merits of Respondent's arguments on appeal. DSS's motion to dismiss is denied.
We next address a deficiency in the record on appeal which is dispositive in case 03 J 122 concerning B.C.2. Pursuant to Rule 9 of the North Carolina Rules of Appellate Procedure, "review is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, constituted in accordance with this Rule 9, and any items filed with the record on appeal pursuant to Rule 9(c) and 9(d)." N.C. R. App. P. 9(a). Moreover, the record on appeal must contain "a copy of the judgment, order, or other determination from which appeal is taken." N.C. R. App. P. 9(a)(1)(h). "[T]his Court will dismiss an appeal if the judgment or order [being appealed from] does not appear in the record on appeal." Abels v. Renfro Corp., 126 N.C. App. 800, 804, 486 S.E.2d 735, 738, disc. review denied, 347 N.C. 263, 493 S.E.2d 450 (1997). A 10 July 2008 permanency planning order regarding B.C.2 does not appear in the record on appeal. Respondent notes in the index in the record on appeal that the Scotland County Clerk of Court's office does not have the permanency planning order regarding B.C.2 on file. However, as it is the appellant's duty to ensure the record on appeal is complete, State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983), and the permanency planning order regarding B.C.2 in case 03 J 122 is not included in the record on appeal, we must dismiss Respondent's appeal in that case.
We now consider the merits of Respondent's arguments with regard to B.C., J.B., and J.D. Respondent challenges the permanency planning orders granting legal guardianship of the children to their caretakers, arguing that Respondent's parental rights were thereby effectively terminated. Respondent contends that the statutory framework and procedural requirements for terminating her parental rights were bypassed and that the appointment of guardianship grants the guardians a higher level of protection than Respondent has been granted. We do not agree.
"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., 184 N.C. App. 42, 47, 645 S.E.2d 798, 801 (2007) (quotation marks and citation omitted), aff'd per curiam, 362 N.C. 230, 657 S.E.2d 354 (2008). 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 Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984). A trial court's conclusions of law, however, are reviewed de novo on appeal. In re D.H., 177 N.C. App. 700, 703, 629 S.E.2d 920, 922 (2006).
"The purpose of [a] permanency planning hearing shall be 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) (2007). If, at the conclusion of the hearing, the juvenile is not returned home, the trial court must consider the following criteria and make findings of fact regarding those that are relevant:
(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;
(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;
(3) Where the juvenile's return home is unlikely within six months, whether adoption should be pursued and if so, any barriers to the juvenile's adoption;
(4) Where the juvenile's return home is unlikely within six months, whether the juvenile should remain in the current placement or be placed in another permanent living arrangement and why;
(5) Whether the county department of social services has since the initial permanency plan hearing made reasonable efforts to implement the permanent plan for the juvenile;
(6) Any other criteria the court deems necessary.
N.C. Gen. Stat. § 7B-907 (b) (2007). Thus, "[a]t the conclusion of the hearing . . . [t]he judge may appoint a guardian of the person for the juvenile pursuant to [N.C. Gen. Stat. §] 7B-600 [.]" N.C. Gen. Stat. § 7B-907 (c) (2007).
The trial court made the following findings of fact relative to factors (1), (2), (4), (5), and (6) listed above:
Although these findings of fact are quoted directly from the permanency planning order regarding J.B., the permanency planning orders regarding B.C. and J.D. contain almost identical findings of fact.
6. DSS' permanent plan for the juvenile is relative custody. . . .
7. It is not possible for the juvenile to be returned home immediately or within six months to the custody of either parent because the parents have not addressed the issues which led to the removal, including:
a. Substance abuse, including prescription medication, and participating in recommended treatment;
b. Submitting to random drug screenings;
c. Mental health counseling and participating in recommended treatment;
d. Domestic violence;
e. Stable home and employment;
f. Cooperating with DSS and maintaining contact with DSS;
g. Visiting with the juvenile.
. . . .
12. The juvenile in this matter is doing extremely well in the home of [the child's caretaker], and DSS notices a very close bond between the juvenile and [the caretaker] when visiting the home.
. . . .
15. The Court finds that it would be in the best interest[s] of the juvenile and the State of North Carolina that [the caretaker] retain the legal and physical custody of the juvenile.
16. It would be contrary to the juvenile's welfare and best interests, at this time, for the juvenile to remain in or return to the home of either of the respondent parents until those issues identified herein and in the Family Services Agreement are addressed by the respondent parents.
17. DSS has made reasonable efforts to protect the juvenile, to reunify the family, and to provide for a permanent plan for the juvenile in this matter. . . .
18. It would be in the best interests of the juvenile to continue to have supervised visitation [with the respondent parents], said visitation to be arranged by and between [the caretaker] and the respondent parents at such times and in such manners as the parties may mutually agree.
19. The juvenile has been placed in the home of a relative for a period in excess of one year, and the Court finds that the placement of the juvenile is stable and continuation of said placement is in the best interests of the juvenile.
. . . .
22. [The caretaker] should be designated as the permanent caretaker and guardian of the person of the juvenile.
Respondent does not challenge any specific findings of fact. Accordingly, these findings of fact are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). We conclude that these findings of fact adequately support the trial court's conclusions and orders that legal and physical custody of the children should remain with the children's current caretakers and that the current caretakers should be designated as the guardians of the children in their care. This assignment of error is overruled.
Respondent's main contention is that the trial court's conclusions of law and orders effectively terminated Respondent's parental rights. This argument has no merit.
Termination of parental rights is a separate and distinct disposition from guardianship with markedly different implications for the parent of a juvenile at issue.
An order terminating the parental rights [of a parent] completely and permanently terminates all rights and obligations of the parent to the juvenile and of the juvenile to the parent arising from the parental relationship, except that the juvenile's right of inheritance from the juvenile's parent shall not terminate until a final order of adoption is issued. The parent is not thereafter entitled to notice of proceedings to adopt the juvenile and may not object thereto or otherwise participate therein. . . .
N.C. Gen. Stat. § 7B-1112 (2007). On the contrary, where legal guardianship is established by the trial court, certain rights and responsibilities may remain with the parent. See N.C. Gen. Stat. § 7B-907 (b)(2) ("Where the juvenile's return home is unlikely within six months, [the trial court must consider] 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. . . ."). In this case, Respondent was granted visitation with the children at such times and in such manners as the guardians and Respondent agree. Respondent would have no such right to visitation with the children had her parental rights been terminated.
Furthermore, while termination of a respondent's parental rights is a final disposition which may never be reviewed or modified by the trial court, where guardianship of a juvenile has been ordered, a party, including a respondent, may file a motion for review pursuant to N.C. Gen. Stat. § 7B-906 or a motion or petition to modify or vacate pursuant to N.C. Gen. Stat. § 7B-1000. Upon such motion or petition, the trial court must conduct a review hearing and may terminate the guardianship or order that the juvenile be reintegrated into a parent's home if the trial court finds "that the relationship between the guardian and the juvenile is no longer in the juvenile's best interest, that the guardian is unfit, that the guardian has neglected a guardian's duties, or that the guardian is unwilling or unable to continue assuming a guardian's duties." N.C. Gen. Stat. § 7B-600 (b).
Finally, Respondent argues that since the trial court's order essentially terminated her parental rights, Respondent was entitled to the notice required to accompany a filing of a motion to terminate parental rights pursuant to N.C. Gen. Stat. §§ 1A-1, Rule 5(b), 7B-1102, and 7B-1106.1. However, as Respondent's rights were not terminated, either actually or effectively, Respondent's argument is without merit.
Respondent has listed other assignments of error in the record on appeal for which there are no arguments or supporting authority in her brief. Therefore, those assignments of error are deemed abandoned. N.C. R. App. P. 28(b)(6).
The orders in cases 03 J 123, 05 J 96, and 07 J 42 are AFFIRMED. The appeal in case 03 J 122 is DISMISSED.
Judges JACKSON and STROUD concur.
Report per Rule 30(e).