An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA06-706
NORTH CAROLINA COURT OF APPEALS
Filed: 6 February 2007
IN THE MATTER OF:
R.W. and C.W.,
Minor Children.
Wilkes County
Nos. 98 J 56 and 98 J 57
Appeal by Respondents from order entered 26 May 2005 by Judge
Mitchell L. McLean in District Court, Wilkes County.
Heard in the
Court of Appeals 24 January 2007.
Michael E. Casterline for Respondent-Appellant Mother.
Hall & Hall Attorneys at Law, P. C., by Douglas L. Hall, for
Respondent-Appellant Father.
Tracie M. Jordan for Guardian Ad Litem.
No brief filed for Petitioner-Appellee
Department of Social Services.
Wilkes
County
McGEE, Judge.
T.W.
(Respondent-Mother)
and
D.W.
(Respondent-Father)
(collectively Respondents) are the biological parents of R.W. and
C.W. (the children). Respondents appeal from a permanency planning
order entered 26 May 2005, which ceased reunification efforts and
continued custody of the children with Wilkes County Department of
Social Services (DSS).
The children were originally adjudicated neglected juveniles
-2in an order filed 1 June 1998, in which DSS was granted legal
custody with physical custody being with the maternal grandparents.
The children were removed from the physical custody of their
maternal grandparents in an order entered 17 July 1998, and were
placed in the home of their paternal grandparents, who later
requested their removal.
The children were placed in foster care.
The trial court held review hearings and permanency planning
hearings on 28 February 2000 and 13 March 2000, and entered a
permanency planning order dated 25 April 2000.
The trial court
entered a review order on 19 September 2001, which RespondentMother appealed, and which our Court reversed in In re Weiler, 158
N.C. App. 473, 581 S.E.2d 134 (2003).
The trial court entered a
review order on 19 July 2004, in which it ordered that Respondents
have three months of supervised visitation.
The trial court
subsequently extended the visitation for three additional months.
The trial court conducted a permanency planning hearing on 28 March
2005, and entered a permanency planning order on 26 May 2005,
continuing custody of the children with DSS and relieving DSS of
any requirement to pursue reunification between Respondents and the
children.
Respondents appeal.
I.
Respondents argue the "trial court erred, or abused its
discretion, by considering a legal conclusion to be a finding of
fact" in making finding of fact 18 in the 26 May 2005 permanency
planning order.
Respondents argue that finding of fact 18 is
actually a conclusion of law and, therefore, the trial court did
-3not meet its obligations under N.C. Gen. Stat. § 7B-907(b)(1).
N.C. Gen. Stat. § 7B-907(b)(1) (2005) provides:
At the conclusion of [any permanency planning
review] 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[.]
"A permanency planning order need not 'contain a formal listing of
the G.S. § 7B-907(b)(1)-(6) factors, expressly denominated as such
. . . as long as the trial court makes findings of fact on the
relevant G.S. § 7B-907(b) factors[.]'"
In re M.R.D.C., 166 N.C.
App. 693, 696, 603 S.E.2d 890, 892 (2004) (quoting In re J.C.S.,
164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004), overruled on
other grounds by In re R.T.W., 359 N.C. 539, 614 S.E.2d 489
(2005)), disc. review denied, 359 N.C. 321, 611 S.E.2d 413 (2005).
In the present case, the trial court made the following
finding of fact, which Respondents challenge:
18.
Because of the children's continued
therapeutic needs, the detrimental changes in
behavior of [R.W.] caused by the visits with
his parents, both children's desires not to
reside with their parents, the desires of both
children to remain in their current foster
care placements, the opinion of [R.W.'s]
therapist and the prior opinion of [C.W.'s]
therapist, it is apparent that it is contrary
to the welfare of the children and to their
best interests to be returned to the home of a
parent.
By making this finding of fact, the trial court complied with its
obligation to make findings as to why it was not in the best
-4interests of the children to return to their parents' home.
The
trial court listed several factual reasons why return would not be
in the children's best interests.
The trial court then employed
the statutory language by finding that it would be "contrary to the
welfare of the children and to their best interests to be returned
to the home of a parent."
We hold the trial court fully complied
with its obligations under N.C.G.S. § 7B-907(b)(1), and we overrule
the assignment of error.
Respondent-Mother also makes a separate, but related argument
that the trial court did not comply with N.C.G.S. § 7B-907(b)(1).
Respondent-Mother argues the trial court did not make a finding
regarding whether it was possible for the children to return home
immediately or within six months.
However, the trial court did
find that both children continued to have therapeutic needs, that
neither child wanted to reside with the parents, and that it would
be contrary to the welfare of the children to return to the home of
the parents.
The trial court also found that R.W.'s visitations
with his parents caused detrimental changes in his behavior.
virtue
of
these
findings,
the
trial
court
complied
with
By
its
statutory obligation to determine whether it was possible for the
children to return home immediately or within six months.
The
trial court determined that it was not possible.
Respondent-Mother also argues that the trial court should have
focused
on
whether
she
had
made
progress
in
eliminating
the
conditions that lead to the removal of the children, rather than
focusing on the progress of the children.
However, Respondent-
-5Mother has not cited any authority for this proposition, other than
the statute. Therefore, we overrule Respondent-Mother's assignment
of error.
See N.C.R. App. P. 28(b)(6).
II.
Respondents next argue the "trial court erred, or abused its
discretion, by incorporating case summaries into finding of fact 1
and considering those summaries to be findings of fact in the
order[.]"
A trial court may properly consider all written reports
and materials submitted in juvenile proceedings.
In re Ivey, 156
N.C. App. 398, 402, 576 S.E.2d 386, 390 (2003).
However, a trial
court
may
not
"delegate
its
fact
finding
duty"
or
"broadly
incorporate these written reports from outside sources as its
findings of fact."
658,
660
(2004).
In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d
Additionally,
a
trial
court
may
not
use
incorporated reports "as a substitute for its own independent
review."
In re M.R.D.C., 166 N.C. App. at 698, 603 S.E.2d at 893.
In the present case, the trial court made the following
finding of fact:
1.
The status of the . . . children is
accurately described in those certain Court
Summaries prepared by the Guardian Ad Litem,
under date of March 23, 2005, and Social
Worker, Deborah Koen, under date of March 28,
2005.
These summaries were admitted into
evidence and are incorporated herein as
Findings of Fact.
However, the trial court then made almost five pages of additional
findings of fact, thereby conducting an independent review of the
evidence.
Therefore, the trial court in this case did not broadly
incorporate the facts in the reports as its only findings of fact,
-6or use the reports as a substitute for its own independent review.
We overrule this assignment of error.
III.
Respondent-Mother argues there was insufficient evidence to
support the trial court's finding that "the detrimental changes in
behavior of [R.W.] [were] caused by the visits with his parents[.]"
Our review of a permanency planning order is limited to whether the
findings of fact are supported by competent evidence in the record
and whether the findings support the conclusions.
In re J.C.S.,
164 N.C. App. at 106, 595 S.E.2d at 161 (2004).
We conclude that the challenged finding of fact was supported
by competent evidence.
R.W.'s foster mother, Rebecca Walsh (Ms.
Walsh), testified that R.W. stopped acting out sexually soon after
he began living at her home.
However, when R.W. was told he would
be visiting with his parents, Ms. Walsh noticed immediate changes
in his behavior.
Ms. Walsh testified that R.W. began to act out
sexually on several different occasions, especially in the days
leading up to the first visit, and that R.W.'s sexual behavior
increased after the visits began. Ms. Walsh further testified that
when R.W. began living with her, he had a "huge interest in babies"
and had touched a baby inappropriately before coming to live with
her.
Ms. Walsh testified that R.W.'s interest in babies increased
after he began the visitations with his parents. Ms. Walsh further
testified that R.W.'s problems with managing his anger improved
soon after he began living at her home, but that he became "very
aggressive" after he began visiting with his parents.
-7R.W.'s therapist, Heather Cain (Ms. Cain), corroborated Ms.
Walsh's testimony, stating that after R.W. learned that he was
going to begin visits with his parents, his behavior became more
aggressive and angry, and he increased his sexualized behavior.
Thus, we conclude that the challenged finding of fact is supported
by competent evidence and we overrule this assignment of error.
IV.
Respondent-Father argues the trial court lacked subject matter
jurisdiction to enter the permanency planning order because the
trial court entered the order more than thirty days after the
hearing, in violation of N.C. Gen. Stat. § 7B-907(c).
N.C. Gen.
Stat. § 7B-907(c) (2005) requires that "[a]ny order shall be
reduced to writing, signed, and entered no later than 30 days
following the completion of the hearing."
held
that
"time
limitations
in
the
However, our Court has
Juvenile
Code
are
not
jurisdictional . . . and do not require reversal of orders in the
absence of a showing by the appellant of prejudice resulting from
the time delay."
In re C.L.C., 171 N.C. App. 438, 443-44, 615
S.E.2d 704, 707 (2005) (citing In re J.L.K., 165 N.C. App. 311,
316, 598 S.E.2d 387, 391, disc. review denied, 359 N.C. 68, 604
S.E.2d 314 (2004) and In re E.N.S., 164 N.C. App. 146, 153, 595
S.E.2d 167, 172, disc. review denied, 359 N.C. 189, 606 S.E.2d 903
(2004)), aff'd per curiam, 360 N.C. 475, 628 S.E.2d 760 (2006).
In the present case, Respondent-Father argues only that the
trial court's delay of less than a month in filing the order was
prejudicial per se.
Because Respondent-Father does not articulate
-8any prejudice, we overrule this assignment of error.
See In re
S.N.H., ___ N.C. App. ___, ___, 627 S.E.2d 510, 513 (2006) (holding
that "a trial court's violation of statutory time limits in a
juvenile case is not reversible error per se.").
Respondents failed to set forth arguments pertaining to their
remaining assignments of error and we deem them abandoned.
N.C.R. App. P. 28(b)(6).
Affirmed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
See
