In re B.M. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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 accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1354
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
In the Matter of:
Durham County
Nos. 12 J 32, 33, 34
B.M., D.C., A.C.
Appeal by respondent-mother from order entered 16 August
2013 by Judge William A. Marsh, III, in Durham County District
Court. Heard in the Court of Appeals 7 April 2014.
Assistant County Attorney Bettyna Belly Abney for Durham
County Department of Social Services, petitioner-appellee.
Assistant Appellate Defender J. Lee Gilliam for respondent-
mother-appellant.
Keith Karlsson for guardian ad litem.
McCULLOUGH, Judge.
Respondent-mother appeals from a permanency planning order
which placed her three children, ”Brooklyn,” “Daniel,” and
“Avery,”1 in the custody of their maternal great aunt (“Aunt C.”)
and ceased reunification efforts by the Durham County Department
of Social Services (“DSS”). We affirm the order.
1
Pseudonyms are used throughout this opinion to protect the
identity of the juveniles.
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I. Background
On 21 February 2012, DSS filed a petition alleging that the
subject juveniles, who share the same father (“Father”), were
neglected and dependent. On 6 June 2012, the court filed an
adjudication and disposition order which adjudicated the
juveniles as dependent and neglected, retained them in the legal
custody of their parents, and placed them in the home of a
court-approved caretaker with whom the parents were then
residing. The caretaker subsequently became unable or unwilling
to care for the children, and by a review order filed 17 July
2012, the court placed the children in the home of Aunt C. The
court later awarded temporary legal and physical custody of the
children to Aunt C. by a review order filed 14 February 2013.
On 11 July 2013, the court held the permanency planning
hearing. On 16 August 2013, the court entered a “Permanency
Planning Order” which concluded the following:
2. It is in the best interests of the
children that the permanent plan be
custody with a relative or other suitable
person.
3. It is in the best interests of the
children that the children be placed in
the legal and physical custody of [Aunt
C.].
. . . .
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8. It is contrary to the children’s best
interest for the children to return to
the respondent parents’ home at this
time, and it is unlikely that they will
be able to return to their parents’ home
in the next six months.
The order also ceased reunification efforts and waived “further
reviews unless a motion is filed by a party to the matter.”
From this order, respondent-mother appeals.
II. Standard of Review
“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)
(citing In re Eckard, 148 N.C. App. 541, 544, 559 S.E.2d 233,
235, disc. review denied, 356 N.C. 163, 568 S.E.2d 192-93
(2002)). “If the trial court’s findings of fact are supported
by any competent evidence, they are conclusive on appeal.” Id.(citing In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134,
137 (2003)). “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
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its discretion with respect to disposition.” In re C.M., 183
N.C. App. 207, 213, 644 S.E.2d 588, 594 (2007).
III. Discussion
On appeal, respondent-mother argues that the trial court
erred by (A) entering findings of fact numbers 9, 11, 16, and 17
when they are not supported by competent evidence; (B)
concluding that the children could not be returned home within
six months and making custody with a relative the permanent
plan; and, (C) by waiving future review hearings.
A. Findings of fact
Respondent-mother contends that portions or all of findings
of fact numbers 9, 11, 16, and 17 are not supported by competent
evidence. Specifically, she challenges: (i) the portions of
finding of fact number 9 which declare she “has been
inconsistent with receiving her mental health services,” and
“[t]here are concerns that she has bipolar disorder”; (ii) the
portion of finding of fact number 11 which states she “admitted
to currently being in a romantic relationship with [Father]”;
(iii) the portion of finding of fact number 16 which states
Father is continuing to use controlled substances; and (iv) the
entirety of finding of fact number 17, which states she “has
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exhibited an inability to process or unwillingness to address
her problems.” We address them in order.
i. Finding of Fact Number 9
Respondent-mother argues the “current evidence” of her
mental health treatment from February until mid-June 2013 did
not support the finding she was inconsistent with seeking mental
health treatment. While it is true respondent-mother did
improve her participation in mental health services during that
window of time, respondent-mother ignores the testimony of the
social worker concerning respondent-mother’s extended history.
The social worker testified that respondent-mother “has been
inconsistent since I’ve been working with her with doing mental
health treatment.” The social worker explained that she had
been working with respondent-mother since 2010, and during this
period of time, “[s]he would start and she would probably do
three to four months [of treatment] and then stopped (sic) doing
it.” Between the filing of the petition on 21 February 2012 and
February 2013, respondent-mother did not receive any mental
health treatment. After the treatment started in late February
2013, she missed appointments, and her willingness to attend and
receive services did not improve until April 2013. As the brief
of the guardian ad litem points out, between the filing of the
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petition in February 2012 and the permanency planning hearing on
11 July 2013, a period of almost seventeen months, respondent-
mother spent at most 2.5 months receiving mental health
treatment. We conclude this evidence supports the finding that
respondent-mother has been inconsistent in receiving mental
health services.
Respondent-mother argues the finding that she suffers from
bipolar disorder is not supported by competent evidence because
it is based upon hearsay testimony of the social worker that she
had been told respondent-mother has the condition. We do not
agree. At a permanency planning hearing, a court may consider
any evidence, including hearsay, if it is relevant, reliable and
necessary to a determination of the child’s needs and an
appropriate disposition. N.C. Gen. Stat. § 7B-907(b) (2011).2
Moreover, respondent-mother did not object to this testimony at
the hearing. In the absence of objection to hearsay testimony
at trial, a finding derived from that testimony will be
considered as based upon competent evidence. In re F.G.J., 200
N.C. App. 681, 693, 684 S.E.2d 745, 753-54 (2009).
2
N.C. Gen. Stat. § 7B-907 was repealed and replaced by N.C. Gen.
Stat. § 7B-906.1 on 19 June 2013, effective 1 October 2013. See
2013 N.C. Sess. Law 129, § 25. Because the hearing here was
conducted prior to the effective date of the new statute, N.C.
Gen. Stat. § 7B-907 applies.
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ii. Finding of Fact Number 11
Respondent-mother argues there is no evidence of a current
romantic relationship or sharing of residence between
respondent-mother and Father which would support this finding.
Respondent-mother, however, does not dispute the portion of the
same finding which indicates that she recently gave birth to
another child by Father. She also does not dispute the court’s
finding that she and Father together obtained a two-bedroom
apartment about five months prior to the hearing. Findings of
fact which are not challenged on appeal are deemed supported by
competent evidence and are binding. Koufman v. Koufman, 330
N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Moreover, even if the
finding were challenged, respondent-mother testified that she
gave birth to her last child by Father on 21 June 2013, just
weeks prior to the hearing, and that she continues to associate
with Father. We conclude these findings and respondent-mother’s
testimony support a finding that respondent-mother and Father
are in a longstanding intimate and romantic relationship.
iii. Finding of Fact Number 16
Respondent-mother argues the finding that Father is
continuing to use controlled substances is based upon unreliable
hearsay testimony. Again, respondent-mother did not object to
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this testimony, and thus the finding is presumed to be based
upon competent evidence. We accordingly affirm this finding.
iv. Finding of Fact Number 17
Respondent-mother argues this finding is conclusory,
erroneous, and contradicted by evidence that respondent-mother
has made significant strides in addressing the conditions that
led to the children’s removal from her care. However, the
evidence shows that respondent-mother did little, if anything,
for several months prior to the permanency planning hearing. As
noted above, the court found, based upon competent evidence,
that respondent-mother has been inconsistent in receiving mental
health services. The court also found, without dispute by
respondent-mother, that she has been “very inconsistent with the
visits” with her children and that she “has a history of not
maintaining stable housing, employment, and mental health.” We
conclude finding of fact number 17 is supported by other
undisputed findings and the evidence.
B. Permanent Plan
Respondent-mother next contends that the court erred when
it found that the children could not be returned home within six
months and made custody with a relative the permanent plan. At
the conclusion of any permanency planning review hearing, if the
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court determines not to return the juvenile home, it must make
written findings, inter alia, “[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). The court is also required by N.C. Gen. Stat. § 7B-
907(c) to make findings as to the best plan of care to achieve a
safe, permanent home for the juvenile, including placement with
a relative “found by the court to be suitable and . . . to be in
the best interest of the juvenile.” N.C. Gen. Stat. § 7B-907(c)
(2011).
Respondent-mother argues the court’s findings do not
support its conclusion that it is in the juveniles’ best
interest not to be returned home but to be placed with Aunt C.
She submits the evidence of the progress she has made supports a
contrary conclusion.
We hold the findings of fact do support the court’s
conclusion. These findings include the aforementioned findings
of fact numbers 9, 11, 16, and 17, and the following findings
which have not been challenged by respondent-mother and thus are
binding.
20. It is not possible to return the children
to the parents’ home at this time.
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Although [respondent-mother] recently
found an apartment, she has a history of
not maintaining stable housing,
employment, and mental health. Although
[respondent-mother’s] attendance and
willingness to receive mental health
services through Comprehensive Community
Care have improved, [respondent-mother]
has a history of inconsistency adhering
to scheduled services. [Father] has not
completed a substance abuse assessment or
parenting program.
21. It is unlikely that the children will be
returned to their parents’ care within
the next six months because [respondent-
mother] has not consistently followed
through with their mental health services
and continues to associate with [Father]
and [Father] has not completed a
substance abuse evaluation or a parenting
program.
22. [Father] has failed to participate in
this case.
. . . .
24. Continued reunification[] efforts with
the parents would be either futile or
inconsistent with the child’s health,
safety, and need for a safe permanent
home within a reasonable period of time.
25. The children’s placement with [Aunt C.]
is stable, and continuing the placement
is in the children’s best interests.
These findings demonstrate that respondent-mother has not made
sufficient progress to support a conclusion that it is in the
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best interest of the children to return them to their parents at
this point.
C. Waiver of Future Review Hearings
Respondent-mother’s final contention is that the court
erred by improperly waiving future review hearings. According
to N.C. Gen. Stat. § 7B-906(b)(4), a court may waive further
review hearings if it finds by clear, cogent, and convincing
evidence, inter alia, that “[a]ll parties are aware that the
matter may be brought before the court for review at any time by
the filing of a motion for review or on the court’s own
motion[.]” N.C. Gen. Stat. § 7B-906(b)(4) (2011).3 Respondent-
mother argues the court at the hearing improperly placed the
burden upon the movant for a review hearing to show there has
been a substantial change of circumstances.
We note that in the written order the court did find in
finding of fact number 27 that “[a]ll parties are aware that the
matter may be brought before the court for review at any time by
the filing of a motion for review or on the court’s own motion.”
The court also stated in its mandate “[t]here shall be no
further reviews unless a motion is filed by a party to the
matter.” Assuming, arguendo, the court erred by assigning a
3
Repealed by 2013 Session Law 129, § 25, and replaced by N.C.
Gen. Stat. § 7B-906.1, effective 1 October 2013.
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burden of proof to the movant, we conclude respondent-mother has
failed to show any prejudice. We do not see any value in
remanding the case, as suggested by respondent-mother, to
clarify her right to seek a review hearing in the future when
the court’s order clearly declares that she has that right.
Based on the foregoing reasons, we affirm the order of the
court.
Affirmed.
Judges HUNTER, Robert C. and GEER concur.
Report per Rule 30(e).