Opinion
No. COA12–17.
2012-06-5
In the Matter of A.A. and N.J.
Office of the Wake County Attorney, by Roger A. Askew, for petitioner-appellee Wake County Human Services. Anna S. Lucas, for respondent-appellant mother.
Appeal by respondent-mother on writ of certiorari from order entered 5 October 2011 by Judge Margaret Eagles in Wake County District Court. Heard in the Court of Appeals 2 May 2012. Office of the Wake County Attorney, by Roger A. Askew, for petitioner-appellee Wake County Human Services. Anna S. Lucas, for respondent-appellant mother.
Pamela Newell, for guardian ad litem.
CALABRIA, Judge.
Respondent-mother (“respondent”) appeals on a petition for a writ of certiorari from a permanency planning order ceasing reunification efforts with her minor children, A.A. (“Annie”) and N.J. (“Natalie”) (collectively “the juveniles”), and awarding guardianship of the juveniles to their maternal grandmother. Annie's father was present for the hearing but is not a party in the appeal. Natalie's father is unknown. We affirm.
We use pseudonyms to protect the identity of the children and for ease of reading.
Wake County Human Services (“petitioner”) first became involved with respondent and the juveniles in August 2009, when it received a report that respondent, Annie, and Annie's father were sleeping in a car two or three nights a week. At that time, Natalie was living with her maternal grandmother. Petitioner provided services to respondent then filed a petition on 25 August 2010, alleging the juveniles were neglected because they were not receiving proper care and supervision and were exposed to an injurious environment. The trial court authorized petitioner to assume non-secure custody of the juveniles and placed both juveniles with their maternal grandmother.
On 29 September 2010, the matter came on for an adjudication and disposition hearing. Subsequently, the trial court entered an order that respondent consented to (“the consent order”), where it determined that the juveniles were neglected and ordered respondent to: (1) obtain and maintain housing sufficient for herself and the juveniles; (2) obtain and maintain employment or income sufficient to meet the needs of herself and her children; (3) follow substance abuse assessment recommendations to include submitting to random drug screens; (4) complete the Positive Parenting Group or a similar program approved by petitioner; (5) complete or provide an updated mental health assessment which included medication management; (6) complete a domestic violence assessment through Interact or another agency approved by petitioner and follow all recommendations; and (7) maintain regular contact with petitioner and notify petitioner of any change in her situation or circumstances.
The trial court held review hearings on 7 December 2010, 22 March 2011, and 13 and 15 September 2011. At the permanency planning hearing in September 2011, the trial court ordered petitioner to cease further efforts to reunify respondent with the juveniles, ordered the permanent plan for the juveniles as guardianship with a relative and appointed the juveniles' maternal grandmother as their guardian. Respondent appeals.
At the outset, we note that the notice of appeal filed by respondent was untimely, and we must dismiss her appeal. In re I.T.P–L., 194 N.C.App. 453, 459, 670 S.E.2d 282, 285 (2008), disc. review denied, 363 N.C. 581, 681 S.E.2d 783 (2009). However, in the exercise of our discretion, we elect to allow the petition for a writ of certiorari filed by respondent seeking review of the 5 October 2011 order, and review the arguments respondent presented in her brief on appeal. SeeN.C.R.App. P. 21(a)(1) (2011).
On appeal from a permanency planning order, our review is limited to “whether there is competent evidence in the record to support the findings and [whether] the findings support the conclusions of law. If the trial court's findings of fact are supported by any competent evidence, they are conclusive on appeal.” In re T.P., ––– N.C.App. ––––, ––––, 718 S.E.2d 716, 718 (2011) (citations omitted).
Respondent first argues the trial court erred in finding she had failed to make sufficient progress in eliminating the conditions that led to the removal of the juveniles and would be unable to provide a safe home for them within the next six months. We disagree.
At the conclusion of a permanency planning hearing, when a trial court orders that a juvenile cannot return home, the court must make findings regarding all relevant criteria listed in N.C. Gen.Stat. § 7B–907(b). N.C. Gen.Stat. § 7B–907(b) (2011). These criteria include “[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) (2011). “[I]n determining whether it is possible for the children to return home within six months of the permanency planning hearing, the court must look at the progress the parents have made in eliminating the conditions that [led] to the removal of the children.” In re T.K., 171 N.C.App. 35, 39, 613 S.E.2d 739, 741 (2005).
In the instant case, the trial court found that petitioner first became involved with respondent and the juveniles due to respondent's instability, substance abuse and mental health problems. The court found that respondent had failed to make sufficient progress in correcting the conditions which led to the removal of the juveniles from respondent's care in that she had not made any progress in her mental health counseling, failed to complete a domestic violence program, had not shown that she was engaged in any substance abuse counseling, had missed drug tests in May, June and July of 2011, was unemployed, and lacked stability in her employment and housing. The court further found respondent was not cooperative with petitioner and was evasive in providing information.
Respondent argues the trial court's findings of fact regarding her failure to complete a domestic violence program are not supported by the evidence because after she was turned away from the initial referral for a domestic violence assessment, she was never given another referral. Respondent also argues that domestic violence was never a great concern in her case, and that any domestic violence concerns have been addressed because she no longer lives with Annie's father. Similarly, respondent argues evidence in the record does not support concerns about her mental health or problems with substance abuse. Therefore, respondent contends, the trial court's finding that she failed to make progress in these areas does not support the trial court's conclusion that the juveniles could not be returned to her home.
Respondent's argument fails to acknowledge that her signature on the consent order required her to: (1) follow substance abuse assessment recommendations that included submitting to random drug screens; (2) complete or provide an updated mental health assessment that included medication management, and (3) complete a domestic violence assessment through Interact or any other agency approved by petitioner and follow all recommendations. Moreover, petitioner first intervened in this case based in part on respondent's substance abuse and mental health problems, as alleged in the initial juvenile petition. Respondent admitted that she never completed a domestic violence assessment and stated at the hearing that she had just reengaged in mental health counseling; however, she provided no evidence to support her statement. Additionally, respondent admitted that she failed to adequately comply with her required drug screens, and she had only shown that she was drug-free for two months immediately preceding the permanency planning hearing.
Respondent also argues the trial court's findings that her housing and employment were not stable do not support the court's conclusion that the juvenile could not be returned to her home. However, the evidence at the hearing established that respondent lacked employment at the time of the hearing and failed to have stable employment for several months. Respondent's employment in Baltimore was terminated in part because she argued with Annie's father during work hours. Similarly, respondent's home situation was not stable. While she had an adequate apartment at the time of the hearing, the trial court did not err in describing her housing as unstable as she had just acquired the apartment on 1 August 2011, six weeks before the permanency planning hearing.
The evidence at the hearing demonstrated that although respondent consented to the initial adjudication and disposition order, she failed to comply with its requirements. The trial court properly found that respondent failed to make sufficient progress toward correcting the conditions which led to the removal of the juveniles from respondent's care. Further, respondent failed to establish stable employment and housing as required by the terms of the adjudication and disposition order. While respondent is correct that there was some evidence at trial that she was making progress, including the fact that she provides a safe home for her infant son, there was sufficient evidence to support the trial court's findings and therefore they are conclusive on appeal. In re B.P., 169 N.C.App. 728, 732–33, 612 S.E.2d 328, 331 (2005) (if supported by some competent evidence, the findings of fact are conclusive even if there is evidence to support findings to the contrary).
Based on its findings, the trial court also determined that it was not in the juveniles' best interests to return them home to their parents' care, but found it was in their best interests to appoint the maternal grandmother as guardian and to adopt the permanent plan of guardianship. As a result, the trial court concluded that it was “in the best interests of the [juveniles] that this [c]ourt adopt as its Order the plan proposed by [WCHS] and Guardian ad Litem....” The trial court properly made findings of fact as to the respondent's progress and as to the best interests of the children. We hold the trial court's findings of fact on these matters support its conclusion that the juveniles could not be returned to respondent's home within the next six months.
Respondent also argues the trial court erred in finding and concluding that reunification efforts with her would be futile and should therefore cease. Respondent contends that based on her argument that the trial court erred in concluding that the juveniles could not be returned home within the next six months, it was also error to cease reunification efforts. Because we hold that the trial court did not err in determining the children could not be returned home within the next six months, based on respondent's failure to correct the conditions that led to the removal of the juveniles from her care or establish stable housing and employment, we also conclude that the trial court did not err in ceasing reunification efforts. Accordingly, we affirm the trial court's order ceasing reunification efforts and placing the juveniles in the guardianship of their maternal grandmother.
Affirmed. Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).