Opinion
No. 08-1345.
Filed March 3, 2009.
On a writ of certiorari from order entered 28 April 2008 by Judge G. Wayne Abernathy in Alamance County District Court. Heard in the Court of Appeals 23 February 2009.
Jamie L. Hamlett for petitioner-appellees Alamance County Department of Social Services. Patricia K. Gibbons for respondent-appellant. Susan L. Dunathan and Jennifer H. Dupuy, for guardian ad litem.
Appeal from the Alamance (06JA01).
Respondent-mother appeals from a Juvenile Order (Motion for Review and Permanency Planning Hearing) entered 28 April 2008 in Alamance County District Court which ordered that foster parents Randy and Debbie Eubanks be granted guardianship of R.A.S. For the reasons stated below, we affirm.
Initials have been used throughout to protect the identity of the juvenile.
On 3 January 2006 the Alamance County Department of Social Services ("DSS") filed a juvenile petition and obtained a nonsecure custody order removing J.A.S. ("Child") from the custody of respondent, who is her mother. On 1 March 2006, the trial court adjudicated the child as abused and neglected by a consent order. The court awarded custody to DSS. On 16 January 2007 the court filed an order after a permanency planning hearing in which it established a permanent plan of reunification with a secondary plan of adoption. By an order filed 29 January 2008, the court modified the permanent plan to provide for guardianship as the secondary plan. At the conclusion of a permanency planning hearing on 5 March 2008, the court changed the permanent plan to guardianship and appointed the foster parents as guardians. The court filed a written order on 28 April 2008. Respondent's attorney filed a notice of appeal from this order on 21 May 2008. Respondent, however, did not sign the notice of appeal as required by Appellate Rule 3A(a). On 12 August 2008, DSS and the guardian ad litem jointly filed a motion to dismiss the appeal. This Court allowed the motion to dismiss on 28 August 2008 and on 16 September 2008, allowed respondent's petition for a writ of certiorari. This Court received the record on appeal on 30 October 2008.
On appeal, respondent-mother raises the following six arguments: (I) the trial court lacked subject matter jurisdiction; (II) the trial court erred by ceasing reunification efforts without further hearings; (III) the trial court erred by entering an order not supported by the findings; (IV) the trial court erred by awarding a guardianship without finding respondent-mother unfit; (V) the trial court erred by granting respondent-mother only visitation rights with the juvenile; and (VI) the trial court erred by failing to award custody of the juvenile to respondent-mother.
I
By her first assignment of error, respondent contends the trial court lacked subject matter jurisdiction to enter the order because the initial juvenile petition was not duly signed and verified in accordance with N.C. Gen. Stat. § 7B-403. We disagree.
"A trial court's subject matter jurisdiction over all stages of a juvenile case is established when the action is initiated with the filing of a properly verified petition." In re T.R.P., 360 N.C. 588, 593, 636 S.E.2d 787, 792 (2006). The Juvenile Code states that a juvenile petition alleging dependency, abuse, or neglect "shall be drawn by the director, verified before an official authorized to administer oaths, and filed by the clerk, recording the date of filing." N.C. Gen. Stat. § 7B-403(a) (2007). In construing this provision of the Juvenile Code, we have held that a juvenile petition is properly "drawn" if the petition contains sufficient information to permit the trial court to determine that the person initiating and signing the petition is the director or duly authorized representative of a department of social services. In re Dj.L., 184 N.C. App. 76, 79-80, 646 S.E.2d 134, 137 (2007).
In Dj.L., we concluded that a signature of a petitioner, listing his or her address as the Department of Social Services, is sufficient to permit a court to find that the petition is drawn by a director or duly authorized representative of a department of social services, given that the respondent never argued that such person lacked authority to act. Id. at 79-80, 646 S.E.2d at 137. Therefore, "[t]he fact that the petition [does] not explicitly state that [the signer] was an `authorized representative' of the director does not create a jurisdictional defect." In re D.D.F., 187 N.C. App. 388, 393, 654 S.E.2d 1, 4 (2007).
Here, the record shows that the verification section of the original juvenile petition for a determination of abuse/neglect/dependency is signed by an individual named "Leslie Jones," but the boxes indicating whether this person is the director or an authorized representative of a director of a department of social services are unchecked. The affidavit as to the status of the minor child attached to the petition is also signed by "Leslie Jones," but the affidavit does not establish this person's relationship to the child. "Leslie Jones" also signed the petition as "petitioner." The petition identified the petitioner as "Alamance County Department of Social Services" and listed the address and telephone number of the Alamance County Department of Social Services. Attached to the petition is a statement concerning reports the Alamance County Department of Social Services had received as to suspicious bruising and injuries to the child.
We conclude, based upon the foregoing information contained in the petition, that a court could reasonably infer Leslie Jones is an employee and authorized representative of Alamance County Department of Social Services. We further note no argument has been made that Leslie Jones lacked authority to initiate the petition. Accordingly, respondent-mother's assignment of error is overruled.
II
By her next assignment of error respondent contends the court erred by ordering a permanent plan of guardianship with a court-approved caretaker and waiving future hearings. She argues that because the order constituted a de facto cessation of reunification efforts, the trial court was required under N.C. Gen. Stat. § 7B-507(c) to conduct another permanency planning hearing within thirty days pursuant to N.C. Gen. Stat. § 7B-907. We disagree.
Under the North Carolina General Statutes, section 7B-507(c),
[a]t any hearing at which the court finds that reasonable efforts to eliminate the need for the juvenile's placement are not required or shall cease, the court shall direct that a permanency planning hearing as required by G.S. 7B-907 be held within 30 calendar days after the date of the hearing and, if practicable, shall set the date and time for the permanency planning hearing.
N.C. Gen. Stat. § 7B-507(c) (2007). In turn, N.C. Gen. Stat. § 7B-907(a) provides the following:
In any case where custody is removed from a parent, guardian, custodian, or caretaker, the judge shall conduct a review hearing designated as a permanency planning hearing within 12 months after the date of the initial order removing custody, and the hearing may be combined, if appropriate, with a review hearing required by G.S. 7B-906. The purpose of the 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). The failure (1) to give notice to the parent that the trial court will consider a permanent plan and (2) to make requisite findings of fact arising out of a permanency planning hearing may require that an order awarding guardianship be reversed and remanded for a permanency planning hearing. In re D.C., 183 N.C. App. 344, 356, 644 S.E.2d 640, 646-47 (2007).
Article 5 of Chapter 7B, N.C. Gen. Stat. §§ 7B-500 through 7B-508, governs temporary custody, nonsecure custody and custody hearings. Article 9 of Chapter 7B, N.C. Gen. Stat. §§ 7B-900 through 7B-911, governs dispositions and provides for a permanency planning hearing held for the purpose of developing a plan to achieve a safe permanent home for the juvenile. N.C. Gen. Stat. § 7B-907(a) (2007).
Notice of the permanency planning hearing and its purpose is required to be given fifteen days in advance to the parent, guardian, any foster parent or anyone having custody of the child. Id. At the conclusion of the hearing the court is required to make "specific findings as to the best plan of care to achieve a safe and permanent home for the juvenile within a reasonable period of time." N.C. Gen. Stat. § 7B-907(c) (2007). Among the alternatives available to the court is the appointment of a guardian for the child pursuant to N.C. Gen. Stat. § 7B-600. Id. "If the court continues the juvenile's placement in the custody or placement responsibility of a county department of social services, the provisions of G.S. 7B-507 shall apply to any order entered under this section." Id.
In the present case, in its order modifying the permanent plan to provide for a secondary plan of guardianship, the trial court gave notice that the custody order would be reviewed and a permanency planning hearing will be held on 23 January 2008. The court subsequently entered orders continuing the hearing until 3 March 2008. Each continuance order stated that the hearing would be a permanency planning hearing. At the conclusion of the permanency planning hearing on 5 March 2008, the court did not continue the juvenile's placement in the custody or placement responsibility of the department of social services. Thus, N.C. Gen. Stat. § 7B-507 is inapplicable. Accordingly, respondent-mother's assignment of error is overruled.
III
By her next assignment of error, respondent-mother contends that the trial court erred by failing to make a finding as to whether or not the child's return home was likely within the next six months. We disagree.
"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 J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004). At the permanency planning hearing, "[t]he court may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition." N.C. Gen. Stat. § 7B-907(b) (2007).
At the conclusion of the hearing, if the juvenile is not returned home, the court shall consider the following criteria and make written findings 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). A permanency planning order is not required to contain a formal listing of all of the above factors; the order is sufficient if it contains findings as to those factors that are relevant. In re Matter of L.B., 181 N.C. App. 174, 190, 639 S.E.2d 23, 31 (2007). 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).
Here, the trial court did find that if the child were returned to respondent's home, she likely "would be brokenhearted and show marked bereavement and regressed behaviors, as any child would who was permanently separated from her primary caregiver." The child is two and a half years old and has lived for more than two of those years with the current foster mother and father, with whom she has "clearly bonded." Respondent-mother is unable to view the child as a separate human being, which could lead to negative consequences as the child "ages and begins the normal process of testing and rebellion." Respondent-mother has been diagnosed with borderline personality disorder. A person who has this disorder "is likely to have poor emotional control and is hypersensitive and will interpret normal aspects of child development as abandonment." Those with this disorder can function normally if the person has a "consistent, predictable and supportive caretaking environment." Respondent will have trouble maintaining normal functioning "without long-term, ongoing, high level of support or if there is any instability or disruption in her life."
Therefore, we hold that while the order does not expressly state that return of the child to the home is unlikely within the next six months, this finding can be inferred. Accordingly, respondent-mother's assignment of error is overruled.
IV, V, VI
Respondent argues her final three issues jointly. She contends the court erred by awarding guardianship to the foster parents without finding that respondent-mother is unfit; by concluding the child's best interest is served by awarding the foster parents a guardianship with respondent-mother being granted only visitation rights; and by failing to award custody of the child to respondent when the evidence supported it. We disagree.
A stated purpose of our Juvenile Code is "[t]o provide standards . . . for ensuring that the best interests of the juvenile are of paramount consideration by the court and that when it is not in the juvenile's best interest to be returned home, the juvenile will be placed in a safe, permanent home within a reasonable amount of time." N.C. Gen. Stat. § 7B-100(5) (2007). Our Supreme Court has emphasized that "the fundamental principle underlying North Carolina's approach to controversies involving child neglect and custody [is], to wit, that the best interest of the child is the polar star." Montgomery, 311 N.C. at 109, 316 S.E.2d at 251. "In determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent." Id. at 109, 316 S.E.2d at 252. Although a parent may be fit and proper, the test for determining custody "is what best meets the needs of the child and what is in the child's best interests." In re Yow, 40 N.C. App. 688, 693, 253 S.E.2d 647, 650 (1979). An appellate court's review of the trial court's determination regarding the best interest of the child is for abuse of discretion. In re D.S.A., 181 N.C. App. 715, 720, 641 S.E.2d 18, 22 (2007). "A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). We hold the trial court did not abuse its discretion. Accordingly, respondent-mother's assignment of error is overruled.
Affirmed.
Judges, HUNTER (Robert C.) and CALABRIA concur.
Report per Rule 30(e).