In re J.R. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in a ccordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1473
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
IN THE MATTER OF:
J.R.1 Mecklenburg County
No. 10 JA 739
Appeal by Respondent-Father from Order entered 1 October
2013 by Judge Regan A. Miller in Mecklenburg County District
Court. Heard in the Court of Appeals 19 May 2014.
Senior Associate Attorney Twyla Hollingsworth-
Richardson, for Petitioner Mecklenburg County
Department of Social Services, Youth and Family
Services, and Administrative Office of the Courts, by
Appellate Counsel Tawanda Foster, for Guardian ad
Litem (joint brief).
Michael E. Casterline for Respondent-Father.
STEPHENS, Judge.
Procedural History and Factual Background
On 20 December 2010, Mecklenburg County Department of
Social Services, Youth and Family Services (“DSS”) filed a
juvenile petition alleging that “Jade” and her two half-siblings
1
Initials and a pseudonym are used to protect the identity of
the juvenile and for ease of reading.
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were neglected and dependent based on the actions of their
mother. Respondent-Father had not been identified as Jade’s
father at that time. By order entered 1 March 2011, the children
were adjudicated neglected and dependent.
Respondent-Father’s paternity was established in February
2011, and the juvenile court placed Jade in his custody.
Placement ended in November of 2011 when Respondent-Father was
arrested and jailed for driving while impaired (“DWI”). On 19
September 2012, the juvenile court conducted a permanency
planning review hearing. The following month, on 18 October
2012, the juvenile court awarded guardianship of Jade to her
maternal aunt and granted visitation to Respondent-Father.
Respondent-Father appealed the juvenile court’s order.
In an opinion filed 4 June 2013, this Court reversed the
juvenile court’s permanency planning review and guardianship
order. Citing “clear” case law, we held that the juvenile court
erred by failing to determine that Respondent-Father was unfit
or acted inconsistently with his status as a parent before the
court applied a best interests analysis to establish
guardianship of Jade with her aunt. In re J.R., __ N.C. App. __,
745 S.E.2d 375 (2013) (unpublished opinion), available at 2013
WL 2432251 [hereinafter J.R.]. “[E]ven when a juvenile has
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previously been adjudicated dependent and neglected,” we stated,
the juvenile court has to specifically find that a natural
parent is unfit or that his conduct is inconsistent with a
parent’s constitutionally protected status in order to award
permanent custody of the child to a nonparent over the
objections of a natural parent. Id. at *5. Because the juvenile
court failed to do so, we reversed its order. Id. at *6.
The juvenile court conducted another permanency planning
review hearing on 18 July 2013. Following the hearing, on 1
October 2013, the court filed its written order, concluding that
Respondent-Father acted inconsistently with his constitutionally
protected status as Jade’s parent. Accordingly, the juvenile
court ordered Jade to be placed in the guardianship of her aunt
pursuant to N.C. Gen. Stat. § 7B-600 (2013). Respondent-Father
appeals that order.
Discussion
On appeal, Respondent-Father argues that the juvenile court
(1) exceeded its authority by concluding that he “acted
inconsistently with his parental role,” (2) made factual
findings leading to this conclusion were not supported by
competent evidence, and (3) erred by finding that efforts to
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reunite Jade with Respondent-Father would be inconsistent with
her need for a permanent home. We affirm.
I. The Juvenile Court’s Authority
In his first argument on appeal, Respondent-Father contends
that the juvenile court exceeded its authority at the permanency
planning review hearing and violated his right to due process of
law under N.C. Gen. Stat. § 7B-802 by “mak[ing] what is
effectively an adjudicatory determination at a review hearing.”
Citing the typically different standards of proof in an
adjudicatory hearing and a permanency planning review hearing,
Respondent-Father contends the juvenile court “stripped [him] of
his constitutionally[ ]protected status [by deciding this issue
in a permanency planning review hearing] without any of the
procedural safeguards set forth in Article 8 of the Juvenile
Code [for an adjudicatory hearing].” We disagree.
DSS and the Guardian ad Litem assert in their joint brief
that Respondent-Father waived this argument by failing to object
at the hearing. Respondent-Father admits his failure to object,
but contends that the issue is nonetheless preserved for
appellate review because the juvenile court acted contrary to
the statutory mandate of section 7B-802. This argument is
without merit.
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The standard of proof for an adjudicatory hearing is clear
and convincing evidence. N.C. Gen. Stat. § 7B-805 (2013). In
this case, the trial court states at the beginning of its
permanency planning review hearing and guardianship order that
its findings of fact are based on “clear, cogent, and convincing
evidence.” This is the proper standard of proof for determining
whether a parent has acted in accordance with his or her
constitutionally protected status as a parent. Owenby v. Young,
357 N.C. 142, 147, 579 S.E.2d 264, 268 (2003) (“Moreover, the
trial court’s determination [in a custody hearing] that a
parent’s conduct is inconsistent with his or her
constitutionally protected status must be supported by clear and
convincing evidence.”) (citation omitted).
Whether Respondent-Father waived his argument or not, the
trial court’s order plainly states that it applied the same
evidentiary standard in the permanency planning review hearing
as is required for an adjudicatory hearing and for the process
of determining whether a parent’s conduct is inconsistent with
his or her status as a parent. Therefore, the trial court’s
conclusion that Respondent-Father acted inconsistently with his
status as a father could not have “stripped him” of his
constitutional rights, as he argues, for failure to use the
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proper evidentiary standard. The trial court used the same
standard of proof in the permanency planning review hearing that
it would have used in an adjudicatory hearing or in a custody
hearing. Moreover, it is uncontested that Respondent-Father was
given notice of the hearing and an opportunity to be heard and,
in light of this Court’s opinion in his prior appeal, the issues
to be determined at that hearing were clear. Accordingly,
Respondent-Father’s first argument is overruled.
II. The Trial Court’s Findings of Fact
“Appellate review of a permanency planning order is limited to
[determining] 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). “If the trial court’s
findings of fact are supported by any competent evidence, they are
conclusive on appeal.” Id. (citation omitted). Because the juvenile
court properly employed a “clear and convincing” evidentiary
standard in this case, the evidence presented at the hearing must
be admissible under that standard in order to be considered
“competent.” Cf. In re McMillon, 143 N.C. App. 402, 411, 546 S.E.2d
169, 175 (2001) (referring to hearsay testimony as incompetent
evidence for purposes of determining whether the trial court’s
findings of fact are based on competent evidence).
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On appeal, Respondent-Father contends that the factual
determinations supporting the juvenile court’s conclusion that
he acted inconsistently with his status as a parent are not
based on competent evidence. Respondent-Father also contests
some of the court’s findings of fact by arguing that certain
evidence suggests a contrary finding. In making this argument,
Respondent-Father specifically challenges the juvenile court’s
findings of fact surrounding child support, visitation, and his
actions before February 2011. He goes on to argue that, without
these findings, the remaining facts do not support a
determination that he acted inconsistently with his status as a
parent. We are unpersuaded.
A. Child Support
First, Respondent-Father challenges the following findings
of fact on the issue of child support:
2. The primary problems that led to [Jade]
coming to [DSS]’s custody and remaining in
custody were: The mother’s substance abuse
issues, the lack of knowledge of [Jade’s]
father’s identity until 8 February 2011,
[Respondent-Father’s] relapse and arrest for
DWI, his unstable housing, and his irregular
employment. Prior to February 2011,
Respondent[-F]ather had not provided any
emotional or financial support for [Jade]
and was not providing a safe and stable
environment for her. At the time she came
into the custody of [DSS], [Respondent-
Father] was suffering from substance abuse
-8-
issues and was not protecting [Jade] from
the substance abuse issues of the mother.
After paternity was established . . . ,
[Jade] was placed with her father by [the
juvenile court], but that placement ended in
November 2011 due to his arrest for DWI and
being placed in jail. [Respondent-Father]
was again not able to establish a safe and
stable home for [Jade].
. . . .
13. [Respondent-Father] has been on notice
that [Jade] might be his child for almost
two and one[-]half years. He has known he is
her father since 8 February 2011. During
that time, he has paid no child support for
[Jade].
14. [Respondent-Father] has had the ability
and means to pay support. He has had
lucrative employment for at least the last
three and one[-]half months, driving a
forklift truck for two different companies.
He had unstable employment before these two
recent jobs, but always made enough money to
support himself and maintain his housing.
. . . .
16. [Jade’s aunt] filed a child support
action in an attempt to have child support
be ordered from [Respondent-Father]. [The
maternal aunt] and [Respondent-Father]
attended a child support court hearing in
June 2013. That hearing was continued, but
[Respondent-Father] still has paid no
support for [Jade] to [DSS] or [Jade’s
maternal aunt] during the twenty[-]six
months he has been aware she is his child
and she has been placed with [her maternal
aunt].
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Respondent-Father does not contend that these findings are
not based on competent evidence. Rather, he contends that they
“do not support [the juvenile court’s] conclusion that [he was]
an unfit parent” because (1) evidence was presented at the
hearing that he also took care of Jade when she visited with him
and (2) he was not required to pay child support. This argument
is misplaced.
A trial court’s finding of fact is not invalid merely
because there is evidence to support a contrary finding. Cf. In
re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997)
(“In a non-jury neglect adjudication, the trial court’s findings
of fact supported by clear and convincing competent evidence are
deemed conclusive, even where some evidence supports contrary
findings.”). As we noted above, a finding of fact in a
permanency planning review hearing is invalid only if it is not
based on “any” competent evidence. In re J.C.S., 164 N.C. App. at
106, 595 S.E.2d at 161. Respondent-Father does not challenge
these findings as not supported by competent evidence.
Therefore, they are binding on appeal. See 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
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appeal.”). The fact that Respondent-Father was not required to
pay child support does not relieve him of the parental
obligation to support his child. See Boyd v. Boyd, 81 N.C. App.
71, 77, 343 S.E.2d 581, 585 (1986) (“Support for minor children
is an obligation shared by both parents according to their
relative abilities to provide support and the reasonable needs
and estate of the child.”); see also Price v. Howard, 346 N.C.
68, 84, 484 S.E.2d 528, 537 (1997) (noting that “support of a
child is ordinarily a parental obligation[, which] . . . should
accompany the right to custody in cases such as this one”).
Accordingly, Respondent-Father’s argument as it relates to child
support is overruled.
B. Visitation
Second, Respondent-Father challenges the following findings
of fact on the issue of visitation:
7. As part of its [o]rder of 19 September
2012, the [c]ourt granted [Respondent-
Father] unsupervised overnight weekend
visitation with [Jade]. [Respondent-Father]
was to pick up [Jade] at her day care center
on Friday afternoon and return her to the
day care center on Monday morning.
8. The visits did not take place as ordered.
Sometimes, [Respondent-Father] would not
pick up [Jade] on Friday and she would spend
the weekend with [her maternal aunt]. On
other occasions, [Respondent-Father] would
end the visit early and return [Jade] to
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[her maternal aunt] before Monday morning.
9. [Respondent-Father] told [the aunt] he
often had to work on weekends[,] but did not
seek to add additional time with the child
during the week. He also told her he faced
financial hardships. He once asked [the
aunt] if he could add [Jade] to his [f]ood
[s]tamp allotment although she was not
primarily living in his home.
10. [Respondent-Father] missed at least 8
scheduled weekend visits in their entirety.
There should have been 21 or 22 weekend
visits. In addition to the missed visits,
others were shortened by [Respondent-
Father].
. . . .
15. He missed some of his weekend visits
because he had to work[,] but did not seek
additional time with [Jade].
. . . .
22. [Jade] cannot be placed with
[Respondent-Father] at this time or within
the next six months. [Respondent-Father] has
been unable to provide care and supervision
for [Jade] for two days out of fourteen on a
consistent basis under the current
visitation schedule. He has missed nearly
forty percent of his scheduled visits with
[Jade] entirely and cut other visits short.
Respondent-Father argues that these findings are “largely
unsupported” by the evidence and “do not support [the trial
court’s] conclusion that [his] conduct has been inconsistent
with being a good parent.” Specifically, Respondent-Father
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argues that the court’s findings of fact are erroneous in the
following ways: (1) Finding 7 incorrectly suggests that
visitation was to occur every week, not every other week; (2)
findings 10 and 22 incorrectly suggest that Respondent-Father
missed a larger percentage of visits than he may have actually
missed because the aunt said she was “unsure” about the
visitation schedule; (3) finding 8 is suspect because of the
aunt’s lack of certainty; (4) findings 9 and 15, regarding
Respondent-Father’s missed visits, are wholly unsupported by the
evidence at the hearing. We disagree.
Finding 7 makes no statement about whether visitation was
to occur every week or every other week. Rather, it clarifies
the period of days that visitation was set to occur doing those
weeks. This is based on the aunt’s testimony that Respondent-
Father was to pick Jade up from her daycare on Friday and drop
her off at the daycare on Monday. Therefore, it is based on
competent evidence.
Findings 10 and 22 are based on the aunt’s testimony that
Respondent-Father missed approximately eight scheduled visits.
The visitation order indicates that visitation was scheduled to
occur every other week. As Respondent-Father admits in his
brief, this provided for 21 or 22 scheduled visits. As a result,
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the aunt’s testimony could be interpreted to mean that
Respondent-Father missed 36% or “nearly forty percent of
scheduled visits with Jade.” This is competent evidence to
support findings 10 and 22. The fact that the evidence could be
interpreted to support a contrary finding is of no consequence.
See In re J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161.
Finding 8 is based on the following testimony by the aunt:
Q Okay. Has [Respondent-Father] exercised
his visitation rights?
A We started out doing that, then, no, it
stopped. He would call me, tell me that he
couldn’t get her, then I would pick her up.
He would call me on a Sunday and tell me
that he has to be at work so early, he don’t
have time to take her to the daycare, can I
get her, so I would go pick her up.
This is competent evidence to support finding 8. The fact that
the aunt was unsure about the visitation schedule goes to the
weight of her testimony, not whether her testimony is competent.
See Harrington v. Rice, 245 N.C. 640, 643, 97 S.E.2d 239, 241
(1957) (“The credibility of the witnesses and the weight of the
evidence were for determination by the court below in
discharging its duty to find facts.”).
Findings 9 and 15 are supported by the testimony quoted
above. They are also supported by the fact that no evidence was
presented at the hearing that Respondent-Father sought
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additional time with Jade. This is competent evidence to support
those findings. Therefore, Defendant’s argument is overruled as
it relates to visitation.
C. Respondent-Father’s Conduct Before February 2011
Third, Respondent-Father challenges findings of fact 2 and
23 regarding his conduct before February 2011. Finding of fact 2
is quoted above and finding of fact 23 reads as follows:
23. [Respondent-Father] has acted
inconsistently with his constitutionally
protected status as [Jade’s] father. At the
time she came into the custody of [DSS] he
was not providing for the emotional and
financial support of the child and had not
acknowledged paternity. He has paid no child
support. He has failed to take advantage of
his court-ordered visitation opportunities.
Respondent-Father contends these findings are not supported by
the evidence because he did not know that he was Jade’s father
until February 2011, after Jade entered DSS custody. We need not
resolve this question here.
“Where there are sufficient findings of fact based on
competent evidence to support the trial court’s conclusions of
law, the judgment will not be disturbed because of other
erroneous findings which do not affect the conclusions.” In re
H.D.F., 197 N.C. App. 480, 490, 677 S.E.2d 877, 883-84 (2009).
Here, the juvenile court’s relevant findings of fact regarding
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visitation and child support are supported by competent
evidence. These findings support the juvenile court’s conclusion
that Respondent-Father acted inconsistently with his
constitutionally protected status as a parent. Therefore, even
assuming the juvenile court’s findings regarding his actions
prior to February 2011 are erroneous, its conclusion that
Respondent-Father acted inconsistently with his role as a parent
is supported by the other findings of fact, which are in turn
supported by competent evidence. Accordingly, Defendant’s second
argument is overruled.
III. The Juvenile Court’s Finding Regarding the Cessation
of Reunification
In his final argument, Respondent-Father contends that the
juvenile court erred in finding efforts to reunite Jade with
either parent would be inconsistent with her need for a
permanent home in a reasonable period of time because this
finding essentially and invalidly ceased reunification efforts
under N.C. Gen. Stat. § 7B-507(b)(1). This is incorrect.
As we noted in In re Padgett,
[t]he clear language of section 7B-507 . . .
states [that] . . . a finding [regarding the
cessation of reunification efforts] must be
made in any order “placing or continuing the
placement of a juvenile in the custody or
placement responsibility of DSS.” N.C. [Gen.
Stat.] § 7B-507(a) [(2013)]. In this case,
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the [o]rder on [r]eview did not place or
continue the placement of the children with
DSS, nor did it continue placement
responsibility with DSS. To the contrary,
the order granted custody to the children’s
grandparents and specifically released DSS
“from all duties over the minor children.”
Thus, section 7B-507 was not applicable, and
the trial court did not err in awarding
custody of the children to their
grandparents in the [o]rder on [r]eview.
156 N.C. App. 644, 649, 577 S.E.2d 337, 341 (2003).
In this case, as in In re Padgett, the permanency planning
review hearing and guardianship order did not place or continue
placement of Jade with DSS or continue placement responsibility
with DSS. Rather, the order placed Jade in her aunt’s
guardianship and specifically released DSS. Accordingly, section
7B-507 is not applicable, and the juvenile court did not err by
placing Jade in her aunt’s guardianship. Defendant’s argument is
overruled.
AFFIRMED.
Judges BRYANT and DILLON concur.
Report per Rule 30(e).