An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in a ccordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1473
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 17 June 2014


IN THE MATTER OF:

      J.R.1                                   Mecklenburg County
                                              No. 10 JA 739



      Appeal by Respondent-Father from Order entered 1 October

2013 by Judge Regan A. Miller in Mecklenburg County District

Court. Heard in the Court of Appeals 19 May 2014.


      Senior   Associate   Attorney   Twyla   Hollingsworth-
      Richardson,    for   Petitioner   Mecklenburg   County
      Department of Social Services, Youth and Family
      Services, and Administrative Office of the Courts, by
      Appellate Counsel Tawanda Foster, for Guardian ad
      Litem (joint brief).

      Michael E. Casterline for Respondent-Father.


      STEPHENS, Judge.


                 Procedural History and Factual Background

      On    20   December    2010,     Mecklenburg     County     Department      of

Social     Services,    Youth    and   Family    Services     (“DSS”)     filed    a

juvenile petition alleging that “Jade” and her two half-siblings

1
  Initials and a pseudonym are used to protect the identity of
the juvenile and for ease of reading.
                                            -2-
were    neglected      and    dependent      based    on    the     actions      of   their

mother.    Respondent-Father          had    not     been    identified         as    Jade’s

father at that time. By order entered 1 March 2011, the children

were adjudicated neglected and dependent.

       Respondent-Father’s paternity was established in February

2011,    and    the    juvenile      court    placed        Jade    in    his       custody.

Placement ended in November of 2011 when Respondent-Father was

arrested and jailed for driving while impaired (“DWI”). On 19

September      2012,    the     juvenile      court     conducted         a     permanency

planning    review      hearing.     The     following      month,       on    18    October

2012, the juvenile court awarded guardianship of Jade to her

maternal       aunt    and    granted      visitation       to     Respondent-Father.

Respondent-Father appealed the juvenile court’s order.

       In an opinion filed 4 June 2013, this Court reversed the

juvenile    court’s      permanency        planning    review       and       guardianship

order. Citing “clear” case law, we held that the juvenile court

erred by failing to determine that Respondent-Father was unfit

or acted inconsistently with his status as a parent before the

court     applied       a     best    interests        analysis          to      establish

guardianship of Jade with her aunt. In re J.R., __ N.C. App. __,

745 S.E.2d 375 (2013) (unpublished opinion), available at 2013

WL   2432251     [hereinafter        J.R.].       “[E]ven    when    a    juvenile      has
                                               -3-
previously been adjudicated dependent and neglected,” we stated,

the   juvenile    court       has       to   specifically        find    that    a    natural

parent   is    unfit    or     that      his    conduct     is   inconsistent          with   a

parent’s      constitutionally           protected      status     in    order       to    award

permanent      custody       of     the      child     to   a    nonparent        over      the

objections of a natural parent. Id. at *5. Because the juvenile

court failed to do so, we reversed its order. Id. at *6.

      The juvenile court                conducted another permanency planning

review hearing on 18 July 2013. Following the hearing, on 1

October 2013, the court filed its written order, concluding that

Respondent-Father acted inconsistently with his constitutionally

protected      status    as    Jade’s        parent.    Accordingly,       the        juvenile

court ordered Jade to be placed in the guardianship of her aunt

pursuant to N.C. Gen. Stat. § 7B-600 (2013). Respondent-Father

appeals that order.

                                         Discussion

      On appeal, Respondent-Father argues that the juvenile court

(1)   exceeded     its        authority        by    concluding         that     he       “acted

inconsistently      with          his     parental      role,”     (2)     made       factual

findings      leading    to       this       conclusion     were    not    supported          by

competent evidence, and (3) erred by finding that efforts to
                                       -4-
reunite Jade with Respondent-Father would be inconsistent with

her need for a permanent home. We affirm.

       I. The Juvenile Court’s Authority

       In his first argument on appeal, Respondent-Father contends

that the juvenile court exceeded its authority at the permanency

planning review hearing and violated his right to due process of

law    under    N.C.   Gen.   Stat.   §      7B-802   by   “mak[ing]       what    is

effectively an adjudicatory determination at a review hearing.”

Citing    the     typically     different      standards     of    proof    in     an

adjudicatory hearing and a permanency planning review hearing,

Respondent-Father contends the juvenile court “stripped [him] of

his constitutionally[ ]protected status [by deciding this issue

in a     permanency planning review hearing]               without any of the

procedural safeguards set forth in Article 8 of the Juvenile

Code [for an adjudicatory hearing].” We disagree.

       DSS and the Guardian ad Litem assert in their joint brief

that Respondent-Father waived this argument by failing to object

at the hearing. Respondent-Father admits his failure to object,

but    contends    that   the    issue    is    nonetheless       preserved       for

appellate review because the juvenile court acted contrary to

the    statutory    mandate     of   section    7B-802.     This    argument       is

without merit.
                                           -5-
       The standard of proof for an adjudicatory hearing is clear

and convincing evidence. N.C. Gen. Stat. § 7B-805 (2013). In

this    case,    the    trial     court    states     at    the    beginning        of   its

permanency planning review hearing and guardianship order that

its findings of fact are based on “clear, cogent, and convincing

evidence.” This is the proper standard of proof for determining

whether    a    parent    has     acted    in    accordance        with      his    or   her

constitutionally protected status as a parent. Owenby v. Young,

357 N.C. 142, 147, 579 S.E.2d 264, 268 (2003) (“Moreover, the

trial    court’s       determination       [in    a     custody    hearing]         that   a

parent’s        conduct      is      inconsistent           with       his         or    her

constitutionally protected status must be supported by clear and

convincing evidence.”) (citation omitted).

       Whether Respondent-Father waived his argument or not, the

trial court’s order          plainly states           that it      applied         the same

evidentiary standard in the permanency planning review hearing

as is required for an adjudicatory hearing and for the process

of determining whether a parent’s conduct is inconsistent with

his or her status as a parent. Therefore, the trial court’s

conclusion that Respondent-Father acted inconsistently with his

status    as    a   father      could     not    have      “stripped      him”      of   his

constitutional rights, as he argues,                     for failure to use the
                                                 -6-
proper       evidentiary       standard.         The   trial       court    used    the    same

standard of proof in the permanency planning review hearing that

it would have used in an adjudicatory hearing or in a custody

hearing. Moreover, it is uncontested that Respondent-Father was

given notice of the hearing and an opportunity to be heard and,

in light of this Court’s opinion in his prior appeal, the issues

to     be    determined    at     that       hearing        were    clear.       Accordingly,

Respondent-Father’s first argument is overruled.

        II. The Trial Court’s Findings of Fact

        “Appellate review of a permanency planning order is limited to

[determining] whether there is competent evidence in the record to

support       the   findings     and       [whether]     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) (citation omitted). “If the trial court’s

findings of fact are supported by any competent evidence, they are

conclusive on appeal.” Id. (citation omitted). Because the juvenile

court       properly    employed       a    “clear     and     convincing”         evidentiary

standard in this case, the evidence presented at the hearing must

be   admissible        under    that       standard    in     order    to     be    considered

“competent.” Cf. In re McMillon, 143 N.C. App. 402, 411, 546 S.E.2d

169,    175    (2001)    (referring         to    hearsay    testimony      as     incompetent

evidence      for   purposes     of    determining       whether      the     trial   court’s

findings of fact are based on competent evidence).
                                      -7-
    On       appeal,   Respondent-Father    contends     that    the    factual

determinations supporting the juvenile court’s conclusion that

he acted inconsistently with his status as a parent are not

based   on    competent   evidence.    Respondent-Father        also   contests

some of the court’s findings of fact by arguing that certain

evidence suggests a contrary finding. In making this argument,

Respondent-Father specifically challenges the juvenile court’s

findings of fact surrounding child support, visitation, and his

actions before February 2011. He goes on to argue that, without

these    findings,      the   remaining     facts   do    not      support   a

determination that he acted inconsistently with his status as a

parent. We are unpersuaded.

              A. Child Support

    First, Respondent-Father challenges the following findings

of fact on the issue of child support:

              2. The primary problems that led to [Jade]
              coming to [DSS]’s custody and remaining in
              custody were: The mother’s substance abuse
              issues, the lack of knowledge of [Jade’s]
              father’s identity until 8 February 2011,
              [Respondent-Father’s] relapse and arrest for
              DWI, his unstable housing, and his irregular
              employment.   Prior    to   February   2011,
              Respondent[-F]ather had not provided any
              emotional or financial support for [Jade]
              and was not providing a safe and stable
              environment for her. At the time she came
              into the custody of [DSS], [Respondent-
              Father] was suffering from substance abuse
                     -8-
issues and was not protecting [Jade] from
the substance abuse issues of the mother.
After paternity was established . . . ,
[Jade] was placed with her father by [the
juvenile court], but that placement ended in
November 2011 due to his arrest for DWI and
being placed in jail. [Respondent-Father]
was again not able to establish a safe and
stable home for [Jade].

. . . .

13. [Respondent-Father] has been on notice
that [Jade] might be his child for almost
two and one[-]half years. He has known he is
her father since 8 February 2011. During
that time, he has paid no child support for
[Jade].

14. [Respondent-Father] has had the ability
and means to pay support. He has had
lucrative employment for at least the last
three and one[-]half months, driving a
forklift truck for two different companies.
He had unstable employment before these two
recent jobs, but always made enough money to
support himself and maintain his housing.

. . . .

16. [Jade’s aunt] filed a child support
action in an attempt to have child support
be ordered from [Respondent-Father]. [The
maternal    aunt]   and   [Respondent-Father]
attended a child support court hearing in
June 2013. That hearing was continued, but
[Respondent-Father]   still    has   paid   no
support for [Jade] to [DSS] or [Jade’s
maternal   aunt]  during    the   twenty[-]six
months he has been aware she is his child
and she has been placed with [her maternal
aunt].
                                         -9-
       Respondent-Father does not contend that these findings are

not based on competent evidence. Rather, he contends that they

“do not support [the juvenile court’s] conclusion that [he was]

an   unfit    parent”    because      (1)   evidence       was   presented        at    the

hearing that he also took care of Jade when she visited with him

and (2) he was not required to pay child support. This argument

is misplaced.

       A   trial   court’s     finding      of   fact    is    not    invalid     merely

because there is evidence to support a contrary finding. Cf. In

re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997)

(“In a non-jury neglect adjudication, the trial court’s findings

of fact supported by clear and convincing competent evidence are

deemed conclusive, even where some evidence supports contrary

findings.”).       As   we    noted    above,     a     finding       of   fact    in     a

permanency planning review hearing is invalid only if it is not

based on “any” competent evidence. In re J.C.S., 164 N.C. App. at

106,    595   S.E.2d    at   161.   Respondent-Father          does    not   challenge

these      findings     as    not     supported       by      competent      evidence.

Therefore, they are binding on appeal. See Koufman v. Koufman,

330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (“Where no exception

is taken to a finding of fact by the trial court, the finding is

presumed to be supported by competent evidence and is binding on
                                      -10-
appeal.”). The fact that Respondent-Father was not required to

pay    child   support    does   not     relieve   him     of   the   parental

obligation to support his child. See Boyd v. Boyd, 81 N.C. App.

71, 77, 343 S.E.2d 581, 585 (1986) (“Support for minor children

is    an   obligation   shared   by    both   parents    according    to   their

relative abilities to provide support and the reasonable needs

and estate of the child.”); see also Price v. Howard, 346 N.C.

68, 84, 484 S.E.2d 528, 537 (1997) (noting that “support of a

child is ordinarily a parental obligation[, which] . . . should

accompany the right to custody in cases such as this one”).

Accordingly, Respondent-Father’s argument as it relates to child

support is overruled.

             B. Visitation

       Second, Respondent-Father challenges the following findings

of fact on the issue of visitation:

             7. As part of its [o]rder of 19 September
             2012,   the   [c]ourt   granted  [Respondent-
             Father]    unsupervised   overnight   weekend
             visitation with [Jade]. [Respondent-Father]
             was to pick up [Jade] at her day care center
             on Friday afternoon and return her to the
             day care center on Monday morning.

             8. The visits did not take place as ordered.
             Sometimes,  [Respondent-Father]  would   not
             pick up [Jade] on Friday and she would spend
             the weekend with [her maternal aunt]. On
             other occasions, [Respondent-Father] would
             end the visit early and return [Jade] to
                                     -11-
           [her maternal aunt] before Monday morning.

           9. [Respondent-Father] told [the aunt] he
           often had to work on weekends[,] but did not
           seek to add additional time with the child
           during the week. He also told her he faced
           financial hardships. He once asked [the
           aunt] if he could add [Jade] to his [f]ood
           [s]tamp allotment although she was not
           primarily living in his home.

           10. [Respondent-Father]          missed at least 8
           scheduled weekend visits          in their entirety.
           There should have been            21 or 22 weekend
           visits. In addition to           the missed visits,
           others   were   shortened           by  [Respondent-
           Father].

           . . . .

           15. He missed some of his weekend visits
           because he had to work[,] but did not seek
           additional time with [Jade].

           . . . .

           22.    [Jade]   cannot    be   placed    with
           [Respondent-Father] at this time or within
           the next six months. [Respondent-Father] has
           been unable to provide care and supervision
           for [Jade] for two days out of fourteen on a
           consistent    basis    under   the    current
           visitation schedule. He has missed nearly
           forty percent of his scheduled visits with
           [Jade] entirely and cut other visits short.

       Respondent-Father argues that these findings are “largely

unsupported” by the evidence           and “do not support [the trial

court’s]   conclusion      that   [his]    conduct   has   been   inconsistent

with    being   a   good    parent.”      Specifically,    Respondent-Father
                                           -12-
argues that the court’s findings of fact are erroneous in the

following    ways:       (1)    Finding       7     incorrectly          suggests      that

visitation was to occur every week, not every other week; (2)

findings 10 and 22 incorrectly suggest that Respondent-Father

missed a larger percentage of visits than he may have actually

missed    because     the      aunt   said        she   was       “unsure”     about    the

visitation schedule; (3) finding 8 is suspect because of the

aunt’s   lack    of   certainty;       (4)    findings        9    and   15,    regarding

Respondent-Father’s missed visits, are wholly unsupported by the

evidence at the hearing. We disagree.

    Finding 7 makes no statement about whether visitation was

to occur every week or every other week. Rather, it clarifies

the period of days that visitation was set to occur doing those

weeks. This is based on the aunt’s testimony that Respondent-

Father was to pick Jade up from her daycare on Friday and drop

her off at the daycare on Monday. Therefore, it is based on

competent evidence.

    Findings 10 and 22 are based on the aunt’s testimony that

Respondent-Father missed approximately eight scheduled visits.

The visitation order indicates that visitation was scheduled to

occur    every   other      week.     As   Respondent-Father             admits   in    his

brief, this provided for 21 or 22 scheduled visits. As a result,
                                     -13-
the   aunt’s    testimony    could    be     interpreted     to     mean     that

Respondent-Father      missed   36%    or    “nearly     forty     percent     of

scheduled   visits    with   Jade.”   This    is   competent       evidence    to

support findings 10 and 22. The fact that the evidence could be

interpreted to support a contrary finding is of no consequence.

See In re J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161.

      Finding 8 is based on the following testimony by the aunt:

            Q    Okay. Has [Respondent-Father] exercised
            his visitation rights?

            A    We started out doing that, then, no, it
            stopped. He would call me, tell me that he
            couldn’t get her, then I would pick her up.
            He would call me on a Sunday and tell me
            that he has to be at work so early, he don’t
            have time to take her to the daycare, can I
            get her, so I would go pick her up.

This is competent evidence to support finding 8. The fact that

the aunt was unsure about the visitation schedule goes to the

weight of her testimony, not whether her testimony is competent.

See Harrington v. Rice, 245 N.C. 640, 643, 97 S.E.2d 239, 241

(1957) (“The credibility of the witnesses and the weight of the

evidence    were     for   determination      by   the     court     below     in

discharging its duty to find facts.”).

      Findings 9 and 15 are supported by the testimony quoted

above. They are also supported by the fact that no evidence was

presented      at   the    hearing    that     Respondent-Father           sought
                                      -14-
additional time with Jade. This is competent evidence to support

those findings. Therefore, Defendant’s argument is overruled as

it relates to visitation.

             C. Respondent-Father’s Conduct Before February 2011

       Third, Respondent-Father challenges findings of fact 2 and

23 regarding his conduct before February 2011. Finding of fact 2

is quoted above and finding of fact 23 reads as follows:

             23.     [Respondent-Father]     has     acted
             inconsistently   with  his   constitutionally
             protected status as [Jade’s] father. At the
             time she came into the custody of [DSS] he
             was not providing for the emotional and
             financial support of the child and had not
             acknowledged paternity. He has paid no child
             support. He has failed to take advantage of
             his court-ordered visitation opportunities.

Respondent-Father contends these findings are not supported by

the evidence because he did not know that he was Jade’s father

until February 2011, after Jade entered DSS custody. We need not

resolve this question here.

       “Where   there   are   sufficient     findings    of   fact   based   on

competent evidence to support the trial court’s conclusions of

law,   the   judgment    will   not    be    disturbed   because     of   other

erroneous findings which do not affect the conclusions.” In re

H.D.F., 197 N.C. App. 480, 490, 677 S.E.2d 877, 883-84 (2009).

Here, the juvenile court’s relevant findings of fact regarding
                                          -15-
visitation      and    child      support        are   supported        by    competent

evidence. These findings support the juvenile court’s conclusion

that     Respondent-Father           acted         inconsistently            with         his

constitutionally protected status as a parent. Therefore, even

assuming      the   juvenile    court’s     findings       regarding     his    actions

prior    to    February    2011     are    erroneous,       its    conclusion         that

Respondent-Father acted inconsistently with his role as a parent

is supported by the other findings of fact, which are in turn

supported by competent evidence. Accordingly, Defendant’s second

argument is overruled.

       III. The Juvenile Court’s Finding Regarding the Cessation
            of Reunification

       In his final argument, Respondent-Father contends that the

juvenile court erred in finding efforts to reunite Jade with

either     parent     would    be   inconsistent          with    her    need       for     a

permanent      home   in   a   reasonable        period    of    time   because       this

finding essentially and invalidly ceased reunification efforts

under N.C. Gen. Stat. § 7B-507(b)(1). This is incorrect.

       As we noted in In re Padgett,

              [t]he clear language of section 7B-507 . . .
              states [that] . . . a finding [regarding the
              cessation of reunification efforts] must be
              made in any order “placing or continuing the
              placement of a juvenile in the custody or
              placement responsibility of DSS.” N.C. [Gen.
              Stat.] § 7B-507(a) [(2013)]. In this case,
                                   -16-
            the [o]rder on [r]eview did not place or
            continue the placement of the children with
            DSS,    nor    did    it   continue   placement
            responsibility with DSS. To the contrary,
            the order granted custody to the children’s
            grandparents and specifically released DSS
            “from all duties over the minor children.”
            Thus, section 7B-507 was not applicable, and
            the trial court did not err in awarding
            custody     of    the    children   to    their
            grandparents in the [o]rder on [r]eview.

156 N.C. App. 644, 649, 577 S.E.2d 337, 341 (2003).

       In this case, as in In re Padgett, the permanency planning

review hearing and guardianship order did not place or continue

placement of Jade with DSS or continue placement responsibility

with    DSS.   Rather,   the    order     placed   Jade   in   her   aunt’s

guardianship and specifically released DSS. Accordingly, section

7B-507 is not applicable, and the juvenile court did not err by

placing Jade in her aunt’s guardianship. Defendant’s argument is

overruled.

       AFFIRMED.

       Judges BRYANT and DILLON concur.

       Report per Rule 30(e).
