In re R.A.H.

• Decision Date: 06 March 2007
• Docket Number: No. COA06-537.,COA06-537.
• Citation: 641 S.E.2d 404
• Court: North Carolina Court of Appeals
• Parties: In the Matter of R.A.H., A Minor Child.

641 S.E.2d 404

In the Matter of R.A.H., A Minor Child.

No. COA06-537.

Court of Appeals of North Carolina.

March 6, 2007.

Appeal by respondent from order entered 23 November 2005 by Judge Scott C. Etheridge in Randolph County District Court. Heard in the Court of Appeals 15 November 2006.

David A. Perez, Thomasville, for petitioner-appellee Randolph County Department of Social Services.

Rebekah W. Davis, Raleigh, for respondent-appellant.

John J. Butler, Parker Poe Adams & Bernstein, Raleigh, for guardian ad litem.

ELMORE, Judge.

This appeal arises from the district court's order, entered 23 November 2005, modifying the permanent plan for the minor child from termination to guardianship, granting guardianship to the child's foster parents, and ordering that there be no further hearings held in the matter. After careful review, we affirm the order of the trial court in part, and reverse and remand in part.

On 14 July 1998, the Randolph County Department of Social Services (petitioner) filed a neglect petition and assumed custody of the minor child R.A.H. Following an adjudication by the trial court that R.A.H. was neglected, petitioner filed a petition to terminate respondent's parental rights. After a hearing, on 23 August 2002, the trial court issued an order terminating respondent's parental rights. Respondent appealed that order, and on 5 July 2005, this Court reversed the trial court and remanded the case for a new hearing.

Respondent was served notice by mail of a hearing for review on 30 September 2005. The hearing was originally set for 12 October 2005, but was continued by request of respondent's counsel to 20 October 2005. On that date, the trial court, apparently ignoring the specific language of this Court's decision, which remanded the case "for a new termination hearing," instead held a new permanency planning hearing. On 23 November 2005, the trial court entered an order changing the permanent plan from termination and adoption to guardianship. It is from this order that respondent now appeals.

Respondent first assigns error to the trial court's failure to adhere to the instructions set forth in this Court's remand. Respondent argues that rather than holding a termination hearing as this Court instructed, the trial court held a permanency planning hearing without dismissing the termination proceeding or requiring petitioner to give specific notice of the change. While we agree that the trial court erred in not following our instructions, we hold that the error was non-prejudicial.

Respondent is absolutely correct in her assertion that "[t]he general rule is that an inferior court must follow the mandate of an appellate court in a case without variation or departure." Condellone v. Condellone, 137 N.C.App. 547, 551, 528 S.E.2d 639, 642 (2000) (quoting Metts v. Piver, 102 N.C.App. 98, 100, 401 S.E.2d 407, 408 (1991)), disc. review denied, 352 N.C. 672, 545 S.E.2d 420 (2000). This Court agrees that the trial court should have explicitly addressed the termination proceeding, either by holding a new hearing or by dismissing it entirely. However, its failure to do so was in no way prejudicial to respondent. The shift to a permanency planning hearing,¹ when coupled with the notice given respondent and the continuance granted to her to allow her counsel to prepare for the hearing, was a de facto dismissal of the termination proceeding. As such, the trial court's error in failing to properly address the issue as required by this Court was harmless.

Respondent's related contention that the findings of fact made prior to reversal could not be relied upon by the trial court is simply incorrect.² To the contrary, "[i]n juvenile proceedings, trial courts may properly consider all written reports and materials submitted in connection with said proceedings." In re Ivey, 156 N.C.App. 398, 402-03, 576 S.E.2d 386, 390 (2003) (quoting In re Shue, 63 N.C.App. 76, 79, 303 S.E.2d 636, 638 (1983), modified and aff'd, 311 N.C. 586, 319 S.E.2d 567 (1984)) (emphasis added). Accordingly, this aspect of her assignment of error is without merit.

Respondent next contends that a number of the trial court's findings of fact are not supported by sufficient, competent evidence or are not proper findings of fact.³ "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). Because we find no error in the trial court's findings of fact, this contention is without merit.

Respondent first claims error in the trial court's finding: "That efforts towards reunification with the Mother would clearly be futile or would be inconsistent with the minor child's health, safety and need for a safe, permanent home within a reasonable period of time and should, therefore, cease." Respondent argues that no evidence was presented regarding either the child's relationship with her mother or the mother and child's ability to pursue reunification; however, evidence was presented showing that there were risks associated with the child returning home, that earlier attempts at home placement had failed, and that respondent had failed even to contact the social worker associated with her case since the last review. This evidence is competent to support the finding of fact.

Respondent next argues that the trial court's finding that "there is a compelling reason why proceeding to a termination of parental rights ... is not in the minor child's best interest ..." was based on incomplete evidence. In this contention, respondent fails to apply the correct standard of review. The issue is not whether the evidence was complete. Rather, the proper course is to determine whether there was evidence competent to support the finding. In this case, the trial court's reliance on the length of time that the child had waited for permanence, when coupled with the other findings of fact, is competent evidence in support of the finding.

Respondent next attacks the trial court's finding that it had "verified that the foster parents understand the legal significance of the appointment of guardianship and they have adequate resources to care appropriately for the minor child[ ]." While respondent asserts that the foster parents were not at the hearing, she acknowledges that the foster parents had been raising the child for six years, and had shown every indication that they wished to continue to do so. Moreover, the evidence provided by petitioner and the guardian ad litem was also competent to support this finding of fact.

Next, respondent claims that the trial court erred in finding that "the Mother received notice of this hearing . . . and knew [petitioner] and the Guardian ad Litem would be asking to change the permanent plan at today's hearing as she was in Court last week and the same was announced in open court." Respondent acknowledges, however, that she did receive notice of the hearing on the date stated by the court. She merely asserts that the notice was confusing. Furthermore, respondent does not seriously dispute that she was made aware that petitioner would seek to change the permanent plan the week before the hearing. There is no doubt that this finding of fact was amply supported by competent evidence.

Respondent's next claim is that the trial court erred in its finding that "it is clear to the Court that the Mother still has not made appropriate progress towards reuniting with the minor child. The permanent plan has been that of adoption and the Mother has presented no evidence of progress made to reunify with the minor child." Respondent repeats her trial counsel's assertion that this finding is "disingenuous." She argues that her visits with the child were restricted, that she maintained a loving bond with the child, and that she was confused about the nature of the hearing. Respondent also finds fault with the trial court's findings that she failed to visit the child for ten months and that a reunification within the next six months was unlikely. Yet nowhere does respondent allege that she actually presented evidence (or, indeed, that there was any evidence to present) showing that she had made any progress "towards providing a safe home." Here, respondent seems to simply miss the point. Maintaining an appropriate bond with one's child, loving and affectionate though it may be, simply is not enough to persuade the courts to allow reunification in the absence of a safe and healthy home. The trial court's finding was supported by competent evidence.

Respondent next claims that the trial court erred in taking judicial notice of "other Orders and reports in the Court's file that show the minor child's lack of permanence is resulting in developmental disabilities and that situation continues today." Though respondent claims that no connection between the child's lack of permanency and her developmental deficiencies was ever alleged, the trial court found in a Pre-Adoptive Review Order that "[t]he Juvenile's emotional health has continued to deteriorate, and the permanency for the Juvenile is not being achieved in a timely matter." At the time of the finding in question, it is clear that permanency had not been achieved. As such, the trial court based its finding on competent evidence.

Respondent further argues that the trial court's finding "[t]hat the minor child herself has requested permanence and has asked to be adopted by the foster parents," is based solely on a statement made by petitioner's attorney. Respondent is correct that "[s]tatements by an attorney are not considered evidence." In re D.L., A.L., 166 N.C.App. 574, 582, 603 S.E.2d 376, 382 (2004). Respondent is incorrect, however, in her assertion that petitioner's attorney's statement was the sole supporting evidence for the trial court's finding. To the contrary, the minor child's...