Opinion
No. COA12–474.
2012-11-6
In the Matter of G.L.B.
Perquimans County Department of Social Services, by William Crowe, for Petitioner–Appellee. Duncan B. McCormick, for Respondent–Appellant Mother.
Appeal by Respondent from orders entered 7 November 2011 and 25 January 2012 by Judge Eula E. Reid in Perquimans County District Court. Heard in the Court of Appeals 9 October 2012. Perquimans County Department of Social Services, by William Crowe, for Petitioner–Appellee. Duncan B. McCormick, for Respondent–Appellant Mother.
BEASLEY, Judge.
Respondent appeals from the trial court's 25 January 2012 permanency planning order and we allow Respondent's petition for writ of certiorari to review the 7 November 2011 order appointing guardians for the juvenile G.L.B . Respondent argues the trial court erred in its findings of fact and by ceasing reunification efforts and appointing guardians for the juvenile. We affirm.
To protect the privacy of the minor child, her initials are used in this opinion.
The Perquimans County Department of Social Services (“DSS”) became involved with the juvenile's family on 5 December 2010. At that time, police investigated an allegation by Respondent that the juvenile's father (“G.B.”) had molested the juvenile on 4 December 2010. Respondent also alleged that G.B. had abused her in the juvenile's presence on other occasions. The juvenile was removed from the home and initially placed with her maternal grandmother. DSS later took custody of the juvenile. On 22 December 2010, DSS filed a petition alleging the juvenile was neglected.
On 23 December 2010, Respondent and G.B. each signed a consent agreement. Respondent agreed to participate in parenting classes, obtain stable housing, continue with counseling, and cooperate with DSS and the juvenile's guardian ad litem. The juvenile was placed with J.C., an older daughter of G.B. who is not a child of Respondent. DSS later dismissed the initial petition because domestic violence charges against G.B. were dismissed.
On 18 April 2011, DSS filed a second petition, in which it alleged the juvenile was neglected and dependent. On 22 July 2011, the trial court entered an order adjudicating the juvenile neglected. The trial court ordered Respondent to submit to a mental health assessment and substance abuse treatment; sign information release forms; submit to random drug screens; participate in parenting classes; obtain help with domestic violence; continue with stable housing and employment; and attend supervised visits with the juvenile. The trial court ordered DSS to make reasonable efforts toward reunification.
Following a 28 September 2011 hearing, the trial court entered a review order in which it ordered DSS to continue to make reasonable efforts toward reunification, but allowed DSS “to change the Permanent Plan in this matter from reunification to guardianship, effective this date.” The trial court also notified the parents that if they did not make progress by the next scheduled court date, 2 November 2011, the trial court would hold a permanency planning hearing at that time. Respondent filed a notice to preserve her right to appeal from the order.
That review order was not entered until 22 November 2011.
Following the 2 November 2011 permanency planning hearing, the trial court entered an order on 7 November 2011 appointing J.C. and her husband B.C. as guardians for the juvenile. On 25 January 2012, the trial court entered a permanency planning order in which it found “[g]uardianship of the juvenile with [J.C.] and [B.C.] is the best plan to provide the juvenile with a safe, permanent home within a reasonable time.” On 6 February 2012, Petitioner filed written notice of appeal from both the 22 November 2011 order “ceasing reasonable efforts” and the 25 January 2012 permanency planning order “changing custody” of the juvenile.
Father, G.B., did not enter notice of appeal on either order.
On 23 May 2012, Respondent filed a petition for writ of certiorari seeking to preserve her right to full review of the 25 January 2012 order and, if necessary, the trial court's 7 November 2011 order appointing J.C. and B.C. guardians for the juvenile. Respondent anticipates that because her notice of appeal identifies the 25 January 2012 order as an order “changing custody,” she may have inadvertently limited the issues she can raise on appeal and precluded review of the issues of guardianship or the permanent plan. Respondent also acknowledges that she failed to give notice of appeal from the 7 November 2011 order appointing guardians for the juvenile.
We first note that nothing in the Rules of Appellate Procedure or N.C. Gen.Stat. § 7B–1001 (2011) limits appellate review to issues specifically identified in the notice of appeal. Instead, the notice of appeal must “designate the judgment or order from which appeal is taken and the court to which appeal is taken[.]” N.C.R.App. P. 3(d); see alsoN.C.R.App. P. 3.1(a). In this case, Respondent's notice of appeal identifies the 25 January 2012 order from which the appeal is taken and this Court as the court to which the appeal is taken. Accordingly, Respondent's notice of appeal is sufficient to permit full review of the 25 January 2012 order. See Stephenson v. Bartlett, 177 N.C.App. 239, 242, 628 S.E.2d 442, 444 (2006) (mistakes in a notice of appeal are not always fatal).
As Respondent acknowledges, her notice of appeal makes no reference to the 7 November 2011 order appointing J.C. and B.C. as guardians for the juvenile. The 7 November 2011 order was entered shortly after the 2 November 2011 permanency planning hearing, but the trial court did not enter the written permanency planning order, which also addresses guardianship, until 25 January 2012. At that point, Respondent could not have entered timely notice of appeal from the 7 November 2011 order. In order to ensure Respondent receives full review of the appointment of J.C. and B.C. as guardians for the juvenile, in our discretion we allow the petition for writ of certiorari to review the trial court's 7 November 2011 order along with the 25 January 2012 permanency planning order.
Respondent's first argument on appeal is that the trial court erred in making Finding of Fact Number 26 in the permanency planning order. We disagree.
“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) (2011). “At any permanency planning review, the court shall 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) (2011).
“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., 198 N.C.App. 108, 112, 679 S.E.2d 843, 845 (2009) (internal quotation marks and citation omitted). “If the trial court's findings of fact are supported by any competent evidence, they are conclusive on appeal.” In re J.C.S., 164 N.C.App. 96, 106, 595 S.E.2d 155, 161 (2004) (citation omitted).
In this case, the challenged finding of fact states:
26. The mother of the juvenile advised the Department of Social Services that she tested positive for opiates because she had taken Vicodin for which she alleged she had a prescription although the mother's pharmacy records do not show that she has a current prescription for Vicodin.
At the hearing, both Respondent and social worker Angela Jordan testified Respondent had notified Ms. Jordan in October of 2011 that she had tested positive for opiates, but explained she believed the positive test was the result of taking prescribed Vicodin. Ms. Jordan testified she contacted Respondent's pharmacy, however, and the pharmacy did not have a record of a current prescription for Vicodin for Respondent. Respondent introduced into evidence a prescription bottle label for Hydrocodone, dated 31 July 2011. The label indicates the prescription was for fifteen pills, to be taken every four to six hours, as needed, and did not provide for any refills. Thus, even assuming Respondent's evidence of her Hydrocodone prescription is true, the July prescription provided for just a few days of pills and was no longer current by the time of the positive drug screen or the November hearing. That being the case, the trial court's finding of fact is supported by competent evidence.
Respondent's remaining argument contains several related contentions that we address separately. First, Respondent argues the trial court improperly found and concluded, pursuant to N.C. Gen.Stat. § 7B–907(b)(1) and (4), that the juvenile could not be returned to Respondent's home immediately or within the next six months or that DSS made reasonable efforts to implement the original permanent plan of reunification. We disagree.
Section 7B–907 requires that, if a juvenile is not returned home at the conclusion of a permanency planning hearing, the trial court must consider six criteria and “make written findings regarding those that are relevant [.]” N.C. Gen.Stat. § 7B–907(b). This Court has “not required trial courts to specifically identify the factors set forth in section 7B–907(b), provided that the record demonstrates that the factors were taken into account.” In re T.R.M., 188 N.C.App. 773, 779, 656 S.E.2d 626, 630 (2008) (citation omitted).
In this case, the trial court's order demonstrates it considered the relevant N.C. Gen.Stat. § 7B–907(b) factors. In fact, the trial court found:
23. It is not possible for the juvenile to be returned home at this time or within the next six months and it is not in the juvenile's best interest to return to the home of her parents because of the mother's continued drug use and drug abuse, as evidenced by her positive drug screens and her criminal charges, as well as her unwillingness to address those issues.
24. The Department of Social Services should be relieved of the duty to make reasonable efforts to reunify the juvenile with her parents in that said efforts are futile because the mother refuses to cooperate with Perquimans DSS as evidenced by her taping of the meetings, refusing to comply with requests for issues like the [sic] her psychological evaluation and drug screens, and lying to the social workers about issues such as her drug use, and is making no progress with the reunification plan as evidenced by, among other concerns, the mother's continued positive drug screens and her criminal charges of driving under the influence.
Respondent argues she made substantial progress in addressing some of DSS's concerns about her parenting ability, such that the trial court's findings of fact and conclusions of law regarding her ability to care for the juvenile are not supported by the evidence. Respondent's argument depends on her contention the trial court improperly found that she had tested positive for opiates without a current prescription. As we have already discussed, however, this finding is supported by the evidence. Further, the trial court's finding that Respondent refused to cooperate with DSS demonstrates that DSS continued to make reasonable efforts toward reunification and is supported by the evidence. Accordingly, we hold that the trial court's findings properly addressed the relevant factors outlined in N.C. Gen.Stat. § 7B–907(b).
Respondent further argues the trial court abused its discretion by ordering DSS to cease reunification efforts. We disagree.
“This Court reviews an order that ceases reunification efforts to 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.” In re C.M., 183 N.C.App. 207, 213, 644 S.E.2d 588, 594 (2007).
In relevant part, Chapter 7B requires:
In any order placing a juvenile in the custody or placement responsibility of a county department of social services, whether an order for continued nonsecure custody, a dispositional order, or a review order, the court may direct that reasonable efforts to eliminate the need for placement of the juvenile shall not be required or shall cease if the court makes written findings of fact that:
(1) Such efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time[.]
N.C. Gen.Stat. § 7B–507 (b)(1) (2011).
In this case, Finding of Fact Number 24 plainly states that further efforts toward reunification would be futile. That finding is supported by the evidence presented at the permanency planning hearing, particularly Ms. Jordan's testimony about Respondent's positive drug screen and persistent refusal to cooperate with DSS. Accordingly, we hold that this portion of Respondent's argument also lacks merit.
Finally, Respondent argues the trial court abused its discretion by placing the juvenile in a guardianship with J.C. and B.C. Again, we disagree.
The juvenile code authorizes the trial court to appoint a guardian for a juvenile “[i]n any case ... when the court finds it would be in the best interests of the juvenile[.]” N.C. Gen.Stat. § 7B–600(a) (2011). “This statute permits the trial court to appoint a guardian at any time during the juvenile proceedings, including the dispositional hearing, when it finds such appointment to be in the juvenile's best interests.” In re E.C., 174 N.C.App. 517, 520, 621 S.E.2d 647, 650–51 (2005). “If the court appoints an individual guardian of the person pursuant to this section, the court shall verify that the person being appointed as guardian of the juvenile understands the legal significance of the appointment and will have adequate resources to care appropriately for the juvenile.” N.C. Gen.Stat. § 7B–600(c) (2011).
Here, the trial court found in the permanency planning order that placing the juvenile in guardianship with J.C. and B.C. was in her best interests and that the prospective guardians understood the significance of the appointment and had the resources to care for the juvenile. These findings are supported by evidence presented at the hearing, including J.C.'s testimony and the reports and recommendations of both the guardian ad litem and DSS. Accordingly, we affirm the trial court's orders.
Affirmed. Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).