Opinion
No. COA11–1222.
2012-04-17
In the Matter of J.M.D.
James W. Spicer, III, for Petitioner–Appellee Greene County Department of Social Services. Lisa Skinner Lefler, for Respondent–Appellant Mother.
Appeal by Respondent–Mother from order entered 19 July 2011 by Judge R. Les Turner in District Court, Greene County. Heard in the Court of Appeals 27 March 2012. James W. Spicer, III, for Petitioner–Appellee Greene County Department of Social Services. Lisa Skinner Lefler, for Respondent–Appellant Mother.
Windy H. Rose, for Respondent–Appellee Father.
No brief filed for Guardian ad Litem.
McGEE, Judge.
The Greene County Department of Social Services (DSS) became involved with Respondent–Mother in July 2007 after receiving a child protective services report. Upon investigation, DSS assumed non-secure custody of J.M.D. and his three siblings (the children). DSS filed a juvenile petition on 18 October 2007, alleging J.M.D. (the juvenile) to be a neglected juvenile.
Respondent–Mother entered into a consent agreement with DSS on 25 October 2007, in which she agreed to receive mental health services. She also agreed to follow all recommendations for further treatment, maintain a suitable residence, attend parenting and nurturing classes, attend supervised visitation, and allow DSS the authority to arrange and provide services for the children.
On 30 January 2008, the trial court entered an order adjudicating the juvenile as neglected. The trial court continued custody of the juvenile with DSS, and ordered Respondent–Mother to attend a parenting program and demonstrate skills learned, keep all mental health appointments, take medications as prescribed, secure and maintain stable housing, and secure and maintain employment. Although the juvenile remained in DSS custody, DSS placed the juvenile with Respondent–Father. In an order entered 25 February 2008, the trial court approved the placement. A permanency planning hearing was held on 29 September 2008, and the trial court entered an order setting the permanent plan for the juvenile as custody with Respondent–Father.
The trial court held another permanency planning hearing on 16 February 2009, and entered an order on 30 March 2009. In the 30 March 2009 order, the trial court concluded that the juvenile's best interests would be served by placing him in Respondent–Father's custody, and again adopted a permanent plan of custody with Respondent–Father. The trial court also relieved DSS and the guardian ad litem of further monitoring responsibility and continued visitation as previously ordered, but directed the parties to provide a visitation schedule. Respondent–Mother appealed from the 30 March 2009 permanency planning order. This Court reversed the order and remanded for further proceedings. In re J.M.D., 200 N .C.App. 617, 687 S.E.2d 710 (2009) (unpublished).
On remand, the trial court found that the matter had “become a custody dispute between the parents[,]” and entered an order on 3 June 2010, concluding that the best interests of the juvenile would be promoted and served by continuing custody with Respondent–Father. The trial court ordered that the matter be removed from Greene County Juvenile Court and transferred to Greene County Domestic Court. Respondent–Mother appealed, and this Court again reversed the trial court. In re J.M.D., ––– N.C. App ––––, 708 S.E.2d 167 (2011). This Court held that the trial court had failed to make the necessary findings pursuant to N.C. Gen.Stat. § 7B–907, and had also erred in failing to follow the requirements of N.C. Gen.Stat. § 7B–911 for transferring a custody matter from juvenile court to civil court. In re J.M.D. at ––––, 708 S.E.2d at 172–73. This Court reversed the trial court's 3 June 2010 permanency planning order, and remanded the matter to the trial court for further proceedings. Id. at ––––, 708 S.E.2d at 174.
On remand, the trial court held a hearing on 18 July 2011 and entered an order on 19 July 2011. In its order, the trial court continued custody of the juvenile with Respondent–Father and continued the permanent plan of custody with Respondent–Father. The trial court awarded Respondent–Mother monthly supervised visitation with the juvenile, and relieved counsel for both Respondent–Mother and Respondent–Father of further duties. Respondent–Mother appeals from the trial court's 19 July 2011 order.
Respondent–Mother first argues that the trial court erred when it purported to transfer the case from juvenile court to civil court and terminated the juvenile court's jurisdiction over the juvenile. However, contrary to Respondent–Mother's argument, the trial court did not terminate its jurisdiction or attempt to transfer the case from juvenile court to civil court. While the order does find that “this matter has become a custody dispute between the parents[,]” nothing in the order suggests that the trial court sought to transfer the juvenile case to civil court. The juvenile case remains pending in juvenile court, and the trial court remains under an obligation to conduct custody review and permanency planning hearings as required by N.C. Gen.Stat. §§ 7B–906 and 7B–907 (2011). Accordingly, Respondent–Mother's argument is overruled.
Respondent–Mother next argues the trial court erred when it continued the permanent plan for the juvenile as custody with Respondent–Father. Respondent–Mother's arguments are misplaced. “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). This Court's “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.C.S., 164 N.C.App. 96, 106, 595 S.E.2d 155, 161 (2004) (citation omitted). In any permanency planning order in which a juvenile is not returned home, the trial court must make written findings concerning:
(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) (2011).
In the present case, this Court, on remand, specifically directed the trial court to “make additional findings of fact addressing any subsections of N.C. Gen.Stat. § 7B–907(b) as it deems relevant, but specifically including N.C. Gen.Stat. § 7B–907(b)(6), setting forth the ‘other criteria’ which it deems ‘necessary’ in entering its order[.]” In re J.M.D., ––– N.C.App. at ––––, 708 S.E.2d at 174.
Respondent-mother contends the trial court failed to make required findings of fact explaining why the juvenile could not be returned to Respondent–Mother's custody either immediately or within six months, and why custody with Respondent–Father remained the best plan for the juvenile. While Respondent–Mother challenges numerous findings of fact from prior orders, she does not challenge any of the findings of fact in the order before us and, thus, they are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E .2d 729, 731 (1991) (“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.”). In its order, the trial court made the following relevant findings of fact regarding the factors set forth in N.C.G.S. § 7B–907(b) and the permanent plan for the juvenile:
10. That the [t]rial [c]ourt carefully considered each of the factors listed under N.C.G.S. [§ ] 7B–907(b).
11. That pursuant to N.C.G.S. [§ ] 7B907 (b)(1), it was not possible for the juvenile to return to the home of [Respondent–Mother] within the next 6 months because the [trial court] was not convinced that [Respondent–Mother] has complied with the orders of the [trial court].
12. That pursuant to N.C.G.S. § 7B907 (b)(2), the juvenile's best interests would be served by placing him in a loving, stable and permanent home with [Respondent–Father].
13. That pursuant to N.C.G.S. [§ ] 7B–907(b)(3), adoption should not be pursued because the juvenile has been placed with [Respondent–Father].
14. That pursuant to N.C.G.S. § 7B–907(b)(4), the juvenile should be placed with [Respondent–Father] because [Respondent–Father] provides a loving, permanent and stable home.
15. That pursuant to N.C.G.S. § 7B–907 (b)(5), since the initial permanency planning hearing, the Greene County Department of Social Services has made reasonable efforts to implement the permanent plan.
16. That pursuant to N.C.G.S. § 7B–907 (b)(6), the [t]rial [c]ourt also considered the other following relevant criteria concerning this juvenile in making this order:
a. That the juvenile should be placed with [Respondent–Father] based on [Respondent–Father's] job status, stability status, home status, marital status and ability of love, affection and to care for the juvenile;
b. That one of the reasons [Respondent–Father] needed to have custody of the juvenile was to have medical insurance placed on the juvenile;
c. That this matter has become a custody dispute between the parents.
....
24. That the juvenile was placed with [Respondent–Father and his wife] pursuant to an Interstate Compact Home Study.
25. That [Respondent–Father] was employed and [Respondent–Father's wife] was caring for the juvenile.
26. That the home of [Respondent–Father] was a fit an[d] proper home in which the juvenile could reside.
....
29. That when the juvenile was placed in the home of [Respondent–Father] and subsequently in the custody of [Respondent–Father], the [trial court] was not convinced that [Respondent–Mother] had complied with the orders of the [trial court] and was convinced that the best interest[s] of the juvenile would be promoted and served by placing custody with [Respondent–Father].
30. That [Respondent–Father] continues to be a fit and proper person to have custody of the juvenile.
We hold that these findings of fact support the trial court's conclusion that the permanent plan for the juvenile should be custody with Respondent–Father.
Respondent–Mother also challenges the visitation plan set out by the trial court. In its order, the trial court specifically set forth the following visitation plan for Respondent–Mother:
4. That [Respondent–Mother] shall have one (1) supervised visit on the first Saturday of each month from 2:00 p.m. until 6:00 p.m., provided that [Respondent–Mother] notifies [Respondent–Father and his wife] at least 96 hours prior to the visit of her intent to exercise this visitation. The visit shall be supervised by [Respondent–Father and his wife] or their appropriate adult designee.
While Respondent–Mother may not like the terms of the visitation plan, we are not persuaded that the trial court erred in setting out a visitation plan in this matter.
Respondent–Mother also argues that the trial court erred in ordering that reunification efforts cease. However, in the order involved in the current appeal, the trial court did not order that reunification efforts cease. Inasmuch as the permanency planning orders of 30 March 2009 and 3 June 2010 relieved DSS of any need to continue efforts toward reunification of the juvenile with Respondent–Mother, those orders were reversed by this Court and are no longer in effect in the present case. In re J.M.D., 200 N.C.App. 617, 687 S.E.2d 710 (2009) (unpublished); In re J.M.D., ––– N.C. App ––––, 708 S.E.2d 167 (2011). Accordingly, we affirm the trial court's order.
Affirmed. Judges STEPHENS and HUNTER, JR. concur.
Report per Rule 30(e).