In re J.W. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1346
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IN THE MATTER OF:
Buncombe County
No. 11 JA 110
J.W.
Appeal by respondent from order entered 16 September 2013
by Judge Andrea F. Dray in Buncombe County District Court.
Heard in the Court of Appeals 7 April 2014.
Hanna Frost Honeycutt for petitioner-appellee Buncombe
County Department of Social Services.
Rebekah W. Davis for respondent-appellant mother.
Winston & Strawn LLP, by Eric M.D. Zion, for guardian ad
litem.
McCULLOUGH, Judge.
Respondent, the mother of the juvenile, appeals from an
order ceasing reunification efforts and establishing
guardianship of the juvenile. After careful review, we affirm.
I. Background
On 21 April 2011, the Buncombe County Department of Social
Services (“DSS”) filed a petition alleging that J.W. was a
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neglected and dependent juvenile. DSS stated that it received a
report of neglect on 11 February 2011 alleging that:
[R]espondent mother went to the home of
[V.T.], the father of the half-sibling of
the minor child, numerous times and got into
verbal altercations, and then rammed
[V.T.’s] car with her two minor children in
the vehicle causing damage to both cars.
The respondent mother was arrested and taken
to jail, and the criminal charges are
pending.
J.W. was placed in foster care. Then, on 8 April 2011,
respondent had a “mental health breakdown,” was charged with
reckless driving, speeding, and running red lights, and was
committed to a hospital for mental health services.
DSS further alleged that respondent had “extensive, long-
term mental health issues” and could not provide proper care for
J.W. DSS additionally alleged that respondent could not care
for J.W. until the criminal charges against her were resolved.
DSS noted that J.W.’s putative father had shown no interest in
providing care for J.W. DSS obtained non-secure custody of the
juvenile. On 6 October 2011, J.W. was adjudicated neglected and
dependent based on stipulations by respondent to the allegations
in the petition.
On 3 January 2012, the trial court entered a permanency
planning and review order in which it ordered that custody
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remain with DSS, but granted respondent unsupervised visitation.
The court set the permanent plan for the juvenile as
reunification. On 13 March 2012, the trial court ordered that
J.W. begin overnight, unsupervised visitation with respondent.
In April 2012, an in-home trial placement began in which
J.W. resided with respondent. During this placement, J.W. was
burned by a barbecue grill after respondent left the child
outside and unsupervised. Also, J.W.’s half-sibling was left
alone in the bathroom and used respondent’s razor to shave off
part of his eyebrow. Additionally, respondent threatened her
Assertive Community Treatment Team (“ACTT”), refused to have
contact with some members, and threatened to murder a social
worker. Respondent also told DSS to take her children if they
thought they could do a better job of parenting.
The trial placement was terminated on 20 August 2012. When
the social worker arrived at the home to remove J.W., respondent
cursed and threated DSS staff in the presence of the juvenile,
and law enforcement was called in order to “keep the respondent
mother at bay.” On 11 January 2013, nunc pro tunc 16 October
2012, the trial court entered a permanency planning and review
order in which it changed the permanent plan for the juvenile to
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guardianship and ceased reunification efforts. Respondent gave
notice to preserve her right to appeal.
On 16 September 2013, the trial court entered a permanency
planning review order in which it awarded guardianship of J.W.
to his foster parents. The court granted respondent visitation
rights. Respondent filed timely notice of appeal from the trial
court’s order.
II. Discussion
In her first argument on appeal, respondent challenges the
trial court’s cessation of reunification efforts in its 16
October 2012 permanency planning order. However, because
respondent has not properly preserved this issue for appeal, we
decline to review her argument.
Pursuant to N.C. Gen. Stat. § 7B–507(c), “[a]t any hearing
at which the court orders that reunification efforts shall
cease, the affected parent, guardian, or custodian may give
notice to preserve the right to appeal that order in accordance
with G.S. 7B–1001.” N.C. Gen. Stat. § 7B–507(c) (2013).
Furthermore, such an order may be appealed only if it is
“properly preserved” in accordance with N.C. Gen. Stat. § 7B–
1001(a)(5). N.C. Gen. Stat. § 7B–1001 permits a parent “to
appeal the order [ceasing reunification efforts] if no
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termination of parental rights petition or motion is filed
within 180 days of the order.” N.C. Gen. Stat. § 7B–
1001(a)(5)(b) (2013). N.C. Gen. Stat. § 7B–1001 further
provides that “[n]otice of appeal and notice to preserve the
right to appeal shall be given in writing by a proper party as
defined in G.S. 7B-1002 and shall be made within 30 days after
entry and service of the order in accordance with G.S. 1A-1,
Rule 58.” N.C. Gen. Stat. § 7B–1001(b) (2013).
Here, respondent properly gave notice to preserve her right
to appeal the 16 October 2012 permanency planning order which
ceased reunification efforts. Pursuant to N.C. Gen. Stat. § 7B-
1001(a)(5)(b), respondent had a right to appeal the order when
180 days passed and no petition or motion to terminate parental
rights was filed. Respondent, however, failed to give notice of
appeal when the 180 days had passed and her right to appeal the
permanency planning order had vested. Accordingly, we decline
to review respondent’s arguments concerning whether the trial
court erred by ceasing reunification efforts. See In re B.P.,
169 N.C. App 728, 732, 612 S.E.2d 328, 331 (2005) (this Court is
bound by findings of fact and conclusions of law set forth in
permanency planning review orders where respondent had the
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ability to appeal from those orders, but did not avail herself
of that opportunity).
We next consider respondent’s argument that the trial court
abused its discretion when it awarded guardianship to the
juvenile’s foster parents.
Pursuant to N.C. Gen. Stat. § 7B-907(c), at the conclusion
of a permanency planning hearing, “the judge shall make specific
findings as to the best plan of care to achieve a safe,
permanent home for the juvenile within a reasonable period of
time.” N.C. Gen. Stat. § 7B-907(c) (2011).1 “[W]hen the court
finds it would be in the best interests of the juvenile, the
court may appoint a guardian of the person for the juvenile.”
N.C. Gen. Stat. § 7B-600(a) (2013). “We review a trial court’s
determination as to the best interest of the child for an abuse
of discretion.” In re D.S.A., 181 N.C. App. 715, 720, 641 S.E.2d
18, 22 (2007).
Here, the trial court found in the permanency planning
order that placing the juvenile in guardianship with his foster
parents was in his best interests. In support of its award of
1
Portions of the Juvenile Code were repealed or amended by S.L.
2013-129, effective 1 October 2013. However, because the order
appealed was entered 16 September 2013, prior to the effective
date of the changes, we cite to the version of the statutes
effective at that time.
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guardianship, the trial court found as fact that the juvenile
had spent most of his life in his foster home, and he had a
close bond with his foster sister and both foster parents. The
juvenile’s medical and dental needs were being met.
Furthermore, the trial court found that “a referral was made for
play therapy” for the juvenile, but he was “declined for
services because he had no need for therapy. The therapist
reported that the minor child is stable and there is no need for
therapeutic intervention.” The trial court also found that the
foster parents understood the full implications of being named
guardians and had adequate resources to care for J.W.
Respondent, on the other hand, was diagnosed with post-traumatic
stress disorder and bipolar disorder. The court found that
while respondent had shown improvement, she still required ACTT
services, which “are one step down from hospitalization.”
Respondent was also unemployed. Based on the evidence and
findings of fact, we conclude the trial court did not abuse its
discretion when it granted guardianship of J.W. to his foster
parents.
We lastly consider respondent’s argument that the trial
court’s visitation order was erroneous. N.C. Gen. Stat. § 7B-
905(c) provides that any dispositional order which leaves the
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minor child in a placement “outside the home shall provide for
appropriate visitation as may be in the best interests of the
juvenile and consistent with the juvenile’s health and safety.”
N.C. Gen. Stat. § 7B-905(c) (2011). This Court has stated that:
In the absence of findings that the parent
has forfeited their right to visitation or
that it is in the child’s best interest to
deny visitation “the court should safeguard
the parent’s visitation rights by a
provision in the order defining and
establishing the time, place[,] and
conditions under which such visitation
rights may be exercised.”
In re E.C., 174 N.C. App. 517, 522-23, 621 S.E.2d 647, 652
(2005) (quoting In re Stancil, 10 N.C. App. 545, 552, 179 S.E.2d
844, 849 (1971)).
Here, the trial court’s order provided that respondent
“shall have two hours of visitation with the minor child
supervised by [DSS] every week on Friday from 9:00 AM to 11:00
AM.” Respondent contends that the limitation on visitation was
unduly restrictive and not based in reason. We disagree. In
light of respondent’s history of mental health issues, as well
as the recent history of disrupted trial placements, we conclude
the trial court did not abuse its discretion in restricting
visitation to weekly supervised visits.
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Respondent further claims that the trial court’s order was
not sufficiently specific because it failed to identify a
location for visitation. We disagree. The trial court
specifically adopted the recommendations of DSS in regards to
visitation, which included the recommendation that visitation
should take place at the Family Visitation Center. Thus, we
conclude that the order in this case does contain the “minimum
outline” required by E.C. Accordingly, we affirm the trial
court’s order.
Affirmed.
Judges HUNTER, Robert C., and GEER concur.
Report per Rule 30(e).