In re R.A.H.

641 S.E.2d 404, 182 N.C. App. 52, 2007 N.C. App. LEXIS 498
Court of Appeals of North Carolina·Decided March 6, 2007·No. No. COA06-537.·Published·Cited by 53 cases

Opinion

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 *407in 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

*408"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.

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In re R.A.H., 641 S.E.2d 404, 182 N.C. App. 52, 2007 N.C. App. LEXIS 498 (N.C. Ct. App. 2007).

641 S.E.2d 404 (In re R.A.H.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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