An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-432
Filed: 6 October 2015
Cumberland County, Nos. 12 JA 624-26
IN THE MATTER OF: M.D., C.D., T.D.
Appeal by respondent from orders entered 25 April 2014 and 11 June 2014 by
Judge Edward A. Pone and 10 and 31 December 2014 by Judge A. Elizabeth Keever
in Cumberland County District Court. Heard in the Court of Appeals 14 September
2015.
Elizabeth Kennedy-Gurnee for petitioner-appellee Cumberland County
Department of Social Services.
Blackburn & Tanner, by James E. Tanner III, for respondent-appellant mother.
Beth A. Hall for guardian ad litem.
DIETZ, Judge.
Respondent, the mother of juveniles M.D., C.D., and T.D., appeals from orders
ceasing reunification efforts with her children and appointing Respondent’s relatives
as guardians for the children. As discussed below, the record supports the trial court’s
findings that Respondent repeatedly missed her random drug screenings, was living
with a boyfriend with a violent criminal history, and failed to complete psychological
and parenting assessments. These findings, in turn, support the trial court’s decision
In The Matter Of: M.D., C.D., T.D.
Opinion of the Court
to cease reunification efforts and to appoint guardians for the juveniles. Accordingly,
we affirm.
Facts and Procedural History
On 23 November 2012, the Cumberland County Department of Social Services
filed a petition alleging that M.D., C.D., and T.D. were neglected and/or seriously
neglected and dependent juveniles. DSS received a report on 17 July 2012 concerning
the safety of the juveniles. The report alleged that the juveniles’ father “sleeps all
day and takes pills (Percocet) and any drugs he can get. The home is nasty and trash
is in the yard.”
DSS received a second report on 21 September 2012, this time alleging that
Respondent left the children in the home with the father, knowing that the father
could not care for the children due to his substance abuse. Respondent’s whereabouts
were unknown. DSS stated that Respondent was addicted to prescription medication
and unable to care for the juveniles due to her substance abuse. DSS further stated
that Respondent had agreed to submit to random substance abuse testing but failed
to comply. The father admitted to being unable to care for the juveniles, and they
were placed in the home of the maternal grandmother. However, the maternal
grandmother was unable to care for the children. DSS ultimately obtained non-
secure custody of the juveniles.
-2-
In The Matter Of: M.D., C.D., T.D.
Opinion of the Court
On 15 May 2013, the trial court adjudicated the juveniles as dependent. The
allegations of neglect were dismissed. Respondent was allowed supervised visitation,
contingent on her having consecutive negative random drug screens. The trial court
held a permanency planning review hearing on 3 February 2014. In an order filed
on 25 April 2014, and by corrected order entered on 11 June 2014, the trial court
ceased reunification efforts with Respondent and changed the permanent plan for the
juveniles to guardianship with relatives. Respondent gave notice to preserve her
right to appeal. On 10 December 2014, and as amended 31 December 2014, the trial
court granted guardianship of C.D. and T.D. to the paternal grandmother, and
guardianship of M.D. to paternal cousins. Respondent appealed.
Analysis
I. Appellate Jurisdiction
We first address our jurisdiction to hear this appeal. Appellees have moved to
dismiss Respondent’s appeal from the order ceasing reunification efforts due to her
failure to give proper notice of appeal. Pursuant to N.C. Gen. Stat. § 7B–1001(a)(5),
a parent who has properly preserved the right to appeal an order which ceases
reunification “shall have the right to appeal the order if no 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). Consequently, “for a respondent-parent who has preserved their
right to appeal the order ceasing reunification efforts, the statute renders the order
-3-
In The Matter Of: M.D., C.D., T.D.
Opinion of the Court
unappealable for a period of 180 days, if no termination of parental rights petition or
motion is filed.” In re A.R., __ N.C. App. __, __, 767 S.E.2d 427, 428 (2014). “Once
the 180 days after the entry of the order ceasing reunification efforts has elapsed, the
respondent-parent that has properly preserved their right to appeal the order
becomes subject to the 30–day limitation in N.C. Gen. Stat. § 7B–1001(b).” Id. at __,
767 S.E.2d at 429.
Here, the trial court entered its order ceasing reunification efforts on 25 April
2014. Respondent filed a notice to preserve her right to appeal on 21 May 2014. The
trial court entered a corrected order on 11 June 2014. No petition to terminate
parental rights was filed but Respondent did not appeal the order ceasing
reunification efforts until 27 January 2015. Because Respondent’s appeal was
untimely, we must dismiss her appeal. However, in our discretion, we construe
Respondent’s appeal as a petition for writ of certiorari, and we allow the writ for the
purpose of reviewing the arguments Respondent presents in her brief on appeal. See
N.C. R. App. P. 21(a)(1) (2013).
II. Order Ceasing Reunification Efforts
Respondent first argues the trial court erred by ceasing reunification efforts.
“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,
-4-
In The Matter Of: M.D., C.D., T.D.
Opinion of the Court
and whether the trial court abused its discretion with respect to disposition.” In re
C.M., 183 N.C. App. 207, 213, 644 S.E.2d 588, 594 (2007). The purpose of a
permanency planning hearing is to “develop a plan to achieve a safe, permanent home
for the juvenile within a reasonable period of time.” N.C. Gen. Stat. § 7B-907(a)
(2013). To achieve this goal, a trial court may order DSS to cease reunification efforts
with a parent pursuant to N.C. Gen. Stat. § 7B-507(b). This statute states:
(b) In any order placing a juvenile in the custody or
placement responsibility of a county department of social
services, whether an order for continued nonsecure
custody, a dispositional order, or a review order, the court
may direct that reasonable efforts to eliminate the need for
placement of the juvenile shall not be required or shall
cease if the court makes written findings of fact that:
(1) Such efforts clearly would be futile or would be
inconsistent with the juvenile’s health, safety, and need for
a safe, permanent home within a reasonable period of
time[.]
N.C. Gen. Stat. § 7B-507(b) (2013).
Here, the trial court made a number of findings that support its conclusion that
reunification efforts would be inconsistent with the juvenile’s health, safety, and need
for a safe permanent home. First, the trial court found that Respondent missed a
number of random drug screens. Respondent contends that “[a]n inference based
solely on missed [drug] screens does not support a conclusion of ongoing substance
abuse when the clear weight of all the other direct and indirect evidence compels a
contrary conclusion.” Respondent cites evidence of a negative drug screen, and the
-5-
In The Matter Of: M.D., C.D., T.D.
Opinion of the Court
lack of any evidence that she was observed to be intoxicated or under the influence of
drugs. We reject this argument.
The juveniles were removed from Respondent’s care, at least in part, due to
her substance abuse. At the adjudication hearing, the trial court found that
Respondent agreed to submit to random drug screens but failed to comply. Following
the adjudication of dependency, the trial court required Respondent to submit to
random drug screens, as well as to comply with substance abuse counseling and
treatment. In its permanency planning review order, the trial court found that
Respondent missed multiple random drug screens, permitting an inference by the
trial court that Respondent was avoiding the drug screens. See In re Whisnant, 71
N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984). The trial court also found that
Respondent’s substance abuse assessment recommended that she “attend Narcotics
Anonymous and Alcoholics Anonymous (NA/AA) meetings” and “get involved in an
appropriate 12-step meeting program,” but that Respondent has only attended three
meetings. Based on these findings, the trial court further found that Respondent
was “not regularly and consistently engaged in substance abuse counseling and
treatment.” These findings are supported by the record.
Second, the trial court found that Respondent relied on her boyfriend, C.D. for
housing and that he had a criminal record. Respondent asserts that C.D.’s actual
-6-
In The Matter Of: M.D., C.D., T.D.
Opinion of the Court
criminal record was not admitted into evidence, and thus the trial court’s finding was
unsupported by the record. Again, we disagree.
The trial court made the following relevant findings of fact:
27. That the Court readopts finding number 11 and 12 from
the previous Permanency Planning Order and sets forth:
11. The Respondent Mother and [C.D.] have been
attending visitation with the juveniles. . . .
[H]owever, [C.D.] should not attend the visitation.
That [C.D.] has criminal charges including Assault
with a Deadly Weapon. . . .
12. That the Respondent Mother provided a copy of
her lease and [C.D.’s] name is on the lease. The
Court finds a home study shall not be completed on
the Respondent Mother’s home inasmuch as [C.D.]
resides in the home and has a criminal history.
28. That the Respondent Mother remains in the home with
an inappropriate caretaker despite the findings from the
last hearing. That [C.D.] was convicted December 4, 1995
of Possessing Stolen Goods (Principal), and he was
incarcerated for seven (7) years, one (1) month and ten (10)
days), with a release date of May 16, 2002. That his
offenses date back to 1994.
The trial court based these findings on the guardian ad litem’s report to the
court, which stated that C.D. “has a substantial criminal background to include
assault with a deadly weapon, injury to personal property, violation of personal
property, resisting [a] public officer, carrying [a] concealed weapon, false report to
police station, threatening phone call.”
-7-
In The Matter Of: M.D., C.D., T.D.
Opinion of the Court
In a hearing concerning reunification, the trial court “may consider any
evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, or testimony
or evidence from any person that is not a party, that the court finds to be relevant,
reliable, and necessary to determine the needs of the juvenile and the most
appropriate disposition. N.C. Gen. Stat. § 7B-906.1(c) (2013). Thus, the trial court’s
findings are supported by the record.
Finally, the trial court also found that respondent failed to complete her
psychological and parenting assessments. We are bound by this finding because
Respondent does not challenge it on appeal. See Koufman v. Koufman, 330 N.C. 93,
97, 408 S.E.2d 729, 731 (1991).
Based on these findings, the trial court concluded that Respondent failed to
make progress towards addressing the conditions which led to the removal of the
juveniles. The court therefore concluded that further efforts to reunify the family
would be futile. These conclusions are supported by the trial court’s findings which,
in turn, are supported by the record.
III. Guardianship
Respondent next argues that the trial court erred in choosing guardianship for
the juveniles, because it was an “unnecessary” and “inappropriate separation of the
juveniles from their parents.” We disagree.
-8-
In The Matter Of: M.D., C.D., T.D.
Opinion of the Court
“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). Pursuant to N.C. Gen. Stat. § 7B-906.1(g), 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-906.1(g) (2013). “[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 again found as fact that Respondent had failed to submit
to random drug screens, “giving the appearance that she is purposely avoiding having
to submit the requested drug screens.” The trial court also again found that
Respondent was living with C.D., and that it was inappropriate to conduct a home
study due to C.D.’s extensive criminal history. In addition to these findings, the court
noted: (1) the juveniles were in relative placements and were “going well” and “both
environments are safe and nurturing and provide appropriately for the juveniles[;]”
(2) Respondent’s visitation with the juveniles has been sporadic; (3) Respondent has
a difficult time redirecting [M.D.] when he is being defiant; (4) Respondent struggles
-9-
In The Matter Of: M.D., C.D., T.D.
Opinion of the Court
with keeping the juveniles focused during visitation and becomes easily frustrated;
and (5) the juveniles had been in the continuous care and custody of DSS since
November 2012.
Respondent does not challenge these findings of fact, and they are binding on
appeal. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Based on these findings,
the trial court determined that it would be in the best interests of the juveniles for
the court to appoint Respondent’s relatives as the juvenile’s guardians. In light of
these unchallenged fact findings, that determination was not an abuse of discretion.
Accordingly, we affirm the trial court’s orders.
AFFIRMED.
Judges ELMORE and DILLON concur.
Report per Rule 30(e).
- 10 -