An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-381
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 21 October 2014


IN THE MATTER OF:                                Lee County
                                                 Nos. 13 JA 15 and 16
J.K. and L.K.




      Appeal     by   Lee   County   Department        of    Social    Services    and

father from order entered 23 December 2013 by Judge Mary H.

Wells in Lee County District Court.                     Heard in the Court of

Appeals 30 September 2014.


      Tron D. Faulk for Lee County Department of Social Services,
      petitioner-appellant.

      Mobley Law Office, PA, by Marie H. Mobley for guardian ad
      litem, appellee.

      Assistant Appellate Defender               J.    Lee   Gilliam    for    father,
      respondent-appellant.

      Ewing Law Firm, PC,             by    Robert      W.    Ewing    for    mother,
      respondent-appellee.


      STEELMAN, Judge.


      Where the trial court made implicit findings of fact that

complied with N.C. Gen. Stat. § 7B-906.1, it did not err.                       Where

custody    was   transferred      from     DSS    to    a    non-parent      relative,
                                         -2-
father’s constitutionally protected status as a natural parent

was not implicated.           Because a judge at a permanency planning

and review hearing is tasked with a different determination than

that of the judge at a prior adjudication hearing, the trial

court   was    not    bound    by      prior   findings   of   fact   from   the

adjudication    hearing       at   a   subsequent   permanency   planning    and

review hearing.        Where evidence in the record supported the

trial court’s findings of fact, and these in turn supported the

trial court’s conclusions of law, the trial court did not abuse

its discretion in determining that placement with grandparents

was in the juveniles’ best interests.

                     I. Factual and Procedural History

    J.K.’s parents married approximately six months after his

birth in 2004.        The parents subsequently separated and on 21

March 2007, entered into a consent order in which they agreed

that T.K. (mother) should be awarded custody of J.K. and that

C.K. (father) should pay the sum of $700 per month as child

support to the North Carolina Child Support and Disbursement

Unit in Raleigh.         The order also required father to provide

health insurance for the benefit of J.K. and to pay all of

J.K.’s uninsured health care expenses.
                                            -3-
      On 19 April 2010, mother entered into a “Voluntary Custody

and Guardianship Agreement” with J.K.’s maternal grandmother and

her husband (collectively, grandparents) in which she purported

to grant to them full custody of J.K.                      The agreement was signed

only by mother, the maternal grandmother and the maternal step-

grandfather.

      In September 2011, mother gave birth to a second child,

L.K., whose biological father is unknown.                         On 25 February 2013,

Lee County Department of Social Services (DSS) filed juvenile

petitions       alleging    that       J.K.       and     L.K.    were      neglected    and

dependent    juveniles.           On    5     March       2013,     grandparents        filed

motions to intervene in the juvenile proceedings.                              On 18 April

2013, the trial court entered an order dismissing the motions to

intervene.

      On 23 April 2013, Judge Jimmy L. Love, Jr. entered an order

adjudicating      the     juveniles      as    neglected         and    dependent.       The

order, filed 21 May 2013, contained findings of fact that J.K.

had     witnessed    his     mother      being          assaulted      by     his   maternal

grandmother and step-grandfather while his mother was holding

L.K.,    that     both     juveniles        had     witnessed       acts       of   domestic

violence    between       grandparents        while       they    were      residing    with

grandparents,       and    that   they      both        witnessed      acts    of   domestic
                                         -4-
violence between mother and her new husband.                  The court further

found that mother has “an extreme mental health and substance

abuse history.”         The court ordered that DSS retain custody of

the juveniles, and allowed DSS to place J.K. with father.                        J.K.

began living with father on 10 May 2013.

       Judge    Wells   conducted    a    permanency     planning     and   review

hearing during the 8 October 2013 and 22 October 2013 terms of

Lee County District Court.            On 23 December 2013, Judge Wells

filed    an     order   awarding    custody      of   both   juveniles      to   the

maternal grandmother.        The court also ordered that the plan for

J.K. continued to be reunification with father.                    Father and DSS

appealed.       On 8 January 2014, this Court allowed the petition

for writ of supersedeas filed by DSS, staying Judge Wells’ order

of 23 December 2013 pending disposition of this appeal.

                           II. Standard of Review

       “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)

(citing In re Eckard, 148 N.C. App. 541, 544, 559 S.E.2d 233,

235,    disc.    review   denied,    356       N.C.   163,   568   S.E.2d   192-93

(2002)).       “If the trial court’s findings of fact are supported
                                 -5-
by any competent evidence, they are conclusive on appeal.”         Id.

at 106-07, 595 S.E.2d at 161 (citing In re Weiler, 158 N.C. App.

473, 477, 581 S.E.2d 134, 137 (2003)).         The disposition portion

of the order is examined to determine whether the court abused

its discretion in deciding what action is in the juvenile’s best

interest.     In re C.W., 182 N.C. App. 214, 219, 641 S.E.2d 725,

729 (2007).

            III. Findings of Fact and Conclusions of Law

    The trial court’s findings of fact pertinent to the issues

raised in this appeal are:

            11. On April 23, 2013, the respondent
            parents, DSS and GAL stipulated that the
            court adjudicate the juveniles as neglected
            & dependent juveniles as defined by NCGS 7B-
            101(15) and NCGS 7B-101(9) in that they did
            not receive proper care, supervision or
            discipline and that they lived in an
            environment injurious to their welfare, and
            that the juveniles’ mother was unable to
            provide   for   the    juveniles’   care   or
            supervision   and   lacked   an   appropriate
            alternative child care arrangement.

            12. The    stipulations    of neglect   and
            dependency, and the allegations therein,
            were made without stipulation, agreement or
            consent of [grandparents].

            13. [Grandparents]    have   not     been   made
            parties to this action.

            14. The plan at disposition on April 23,
            2013 was reunification with the respondent
            mother or respondent father for [J.K.] and
                       -6-
reunification with the mother for [L.K.].
The Court found that it was in the best
interests of [J.K.], with the consent of all
parties, to be placed with the respondent
father pending a kinship assessment.         A
kinship   assessment   [was]  conducted   and
approved and the juvenile has been living
with his father since May 10, 2013. The
Court found that it was in the best
interests of [L.K.] to remain in foster care
at that time. Case plans were developed for
the respondent mother and respondent father.

. . . .

20. Prior to the filing of the Petition by
DSS, [father] acted inconsistently with his
constitutionally protected parental status
as it relates to [J.K.].

21. [Father]    has   been    willingly and
deliberately absent from [J.K.’s] life for
the vast majority of [J.K.’s] life.

22. Prior   to these     proceedings, [father]
chose not    to have     a relationship with
[J.K.].

23. [Father]    was   aware  of   [mother’s]
inability to maintain stable housing, yet,
[father] failed to take any steps to protect
his son.

24. [Father] failed to communicate with or
inquire about [J.K.] during his absence from
[J.K.].

25. [Father] has willfully failed to visit
with [J.K.] until DSS filed the Petition.

26. [Father]    surrendered    his      parental
rights to another biological child.

27.   [Father]   had   the   capacity   and   the
                    -7-
ability to visit with [J.K.], to inquire
about [J.K.] and to take necessary steps to
remove    [J.K.]  from    the   detrimental
environment [J.K.] suffered while in the
care of [mother].

28. [Father]    had  the ability   and  the
capacity to exercise his parental rights to
[J.K.] at all times.

29. [Father] could have made more of       an
effort to maintain contact with [J.K.].

30. [Father’s]    conduct  was  intentional
whereby he withheld his love, his presence,
his care and opportunity to display filial
affection to [J.K.].

31. [Father’s] actions were inconsistent
with any desire to maintain a relationship
with [J.K.].

32. The minor children’s interests are best
served   by  sustaining links   with  their
natural families.

33. It is in the best interests      of   the
minor children to live together.

34. [J.K.] and [L.K.] have a nurturing and
important relationship with each other.

35. [J.K.]     and   [L.K.’s]   bond   and
maintenance of their relationship plays an
important role in their development and
sense of identity.

36. [Grandparents] addressed the medical
and mental health needs of the children when
the children were in their care.

37. [J.K.’s]    ticks  [sic]   were  greatly
diminished and even disappeared while in the
custody of [grandparents].
                     -8-


38. [J.K.] is always very excited to see
his sister, [L.K.].

39. [J.K.] assumed     a   parental   role   in
caring for [L.K.].

40. [J.K.] was happy, relaxed and basically
tick [sic] free when at his maternal
grandmother’s home with his sister.

41. As of March 1, 2013, [J.K.] did not
verbalize   any   concerns   or   report    any
instances    of    domestic     violence     or
significant    conflict    occurring     within
[grandparents’]   home   to    Wynn’s    Family
Psychology.

42. [J.K.’s]    sudden    and    unsupported
statement of alleged violence and excessive
alcohol use in the [grandparents’] home,
followed a period of time [J.K.] was in the
sole   care,  control   and   influence   of
[mother].

43. [Grandparents] have materially complied
with every request by the Department of
Social Services.

44. [Grandparents] have loved and provided
for   the    children,   either    fully or
substantially, their entire lives.

45. [Grandparents] are not a danger to the
children.

46. [Grandparents]    have been  the  sole
source of stability for both children over
the course of their lives.

47. [Grandparents] are the only       available
kinship   placement  for  both        children,
together.
                                -9-
           48. Continued efforts to eliminate the need
           for placement of the juveniles and to
           reunify the Respondent Mother permanently
           would be inconsistent with the juveniles’
           health, safety, and need for a safe,
           permanent home within a reasonable period of
           time.

           49. [J.K.] was placed with [father] on May
           10, 2013.

           50. [Father]    paid  court    ordered child
           support in the amount of $700.00 per month
           prior to [J.K.] being placed with him by the
           Department of Social Services.

           51. [Father’s] child support obligation was
           suspended immediately upon [J.K.] being
           placed in his care.

           52. The respondent father has taken [J.K.]
           to his counseling sessions, when requested
           to   do   so by  DSS,  and  has  otherwise
           cooperated with the Department of Social
           Services.

           53. The Department of Social [S]ervices has
           asked [father] to: stay in contact, provide
           insurance    for    [J.K.],   make   doctor
           appointments,   be   on  time  for  visits,
           maintain a working phone and provide DSS
           with his employment status.

           . . . .

           60. The plan of reunification      of   [J.K.]
           with his father should continue.

       The court then made the following pertinent conclusions of

law:

           5.   That it would be against the health and
           welfare of the juveniles and contrary to
                               -10-
           their best interests to be returned to the
           custody of the respondent mother.

           6.   That continued efforts to eliminate the
           need for placement of the juveniles and to
           reunify with the Respondent Mother would be
           inconsistent with the juveniles’ health,
           safety, and need for a safe, permanent home
           within a reasonable period of time and
           should therefore be ceased.

           7.   That the plan for the juveniles shall
           therefore change from reunification with the
           respondent   mother  to   custody  with  the
           maternal grandmother, and this is in the
           best interests of the juveniles.

           8.   The plan for [J.K.] should continue to
           be reunification with respondent father.

           9.   That the legal and physical custody of
           [J.K. and L.K.] shall be placed immediately
           with their maternal grandmother, . . . and
           this is in their best interests.

    The court further made conclusions of law that it was in

the best interests of J.K. to receive psychological treatment

from Wynn’s Family Psychology and to have visitation with his

parents.

                   IV. Failure to Make Findings

    DSS contends the court erred by failing to make findings of

fact mandated by N.C. Gen. Stat. § 7B-906.1.   We disagree.

    N.C. Gen. Stat. § 7B-906.1 requires a court at every review

and permanency planning hearing to consider certain criteria in

determining the needs of the juvenile and the most appropriate
                                         -11-
disposition, and “make written findings regarding those that are

relevant[.]”        N.C. Gen. Stat. § 7B-906.1(c),(d) (2013).                      Among

the   listed    criteria       is    “[w]hether     efforts      to    reunite      the

juvenile     with     either     parent       clearly    would    be    futile       or

inconsistent with the juvenile’s safety and need for a safe,

permanent home within a reasonable period of time.”                      N.C. Gen.

Stat. § 7B-906.1(d)(3).             Additionally, the statute requires the

court to make certain findings of fact, if relevant, when the

juvenile is not placed with a parent at the permanency planning

hearing,   including:      (1)      “[w]hether      it   is   possible       for     the

juvenile to be placed with a parent within the next six months

and, if not, why such placement is not in the juvenile’s best

interests”     and   (2)   “[w]here      the     juvenile’s   placement       with    a

parent is unlikely within six months, whether legal guardianship

or custody with a relative or some other suitable person should

be established . . . .”          N.C. Gen. Stat. § 7B-906.1(e)(1),(2).

      DSS argues that the court failed to make a written finding

pursuant   to   N.C.    Gen.     Stat.    §     7B-906.1(d)(3)    as    to    whether

reunification efforts with either parent clearly would be futile

or inconsistent with the juvenile’s safety and need for a safe,

permanent home.       It further argues that the court failed to make

a written finding of fact pursuant to N.C. Gen. Stat. § 7B-
                                 -12-
906.1(e)(1) as to whether it is possible for the juvenile to be

placed with a parent within the next six months.              N.C. Gen.

Stat. § 7B-906.1(e)(1)

    When a statute in the Juvenile Code calls for the court to

make certain findings of fact, it is not necessary for the court

to quote the exact language of the statute as long as the “order

embraces the substance of the statutory provisions . . . .”            In

re L.M.T.,    367 N.C. 165, 169, 752 S.E.2d 453, 456 (2013).

While it is the better practice for the trial court to expressly

state in its findings that it found that placement with a parent

was not possible or unlikely, we think that the trial court

implicitly made these findings when it found that reunification

with father should continue to be the permanent plan, that the

juveniles should not be placed with their parents, and that it

is in the juveniles’ best interests that placement and custody

of the juveniles be awarded to their maternal grandmother.

    This argument is without merit.

                       V. Abuse of Discretion

    DSS and father contend that the court erred and abused its

discretion   by   transferring   custody   of   J.K.   from    DSS,   and

placement with father, to the maternal grandmother.           They argue

that the court erred by finding father acted inconsistently with
                                 -13-
his constitutionally-protected status as a natural parent.       They

submit that the finding is not supported by clear and convincing

evidence.   We disagree.

    “A   natural   parent’s   constitutionally   protected   paramount

interest in the companionship, custody, care, and control of his

or her child is a counterpart of the parental responsibilities

the parent has assumed and is based on a presumption that he or

she will act in the best interest of the child.”             Price v.

Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997).             In a

juvenile proceeding under Chapter 7B, a natural parent may lose

this constitutionally-protected right to control, and permanent

custody of the child may be awarded to a nonparent if the court

either finds, based upon clear and convincing evidence, that (1)

the natural parent is unfit, or (2) the natural parent’s conduct

is inconsistent with the constitutionally-protected status.        In

re D.M., 211 N.C. App. 382, 385, 712 S.E.2d 355, 357 (2011).

“[T]o apply the best interest of the child test in a custody

dispute between a parent and a nonparent, a trial court must

find that the natural parent is unfit or his or her conduct is

inconsistent with a parent’s constitutionally protected status.”

In re B.G., 197 N.C. App. 570, 574, 677 S.E.2d 549, 552 (2009),
                                       -14-
appeal dismissed and disc. review denied,                  365 N.C. 212, 709

S.E.2d 919 (2011).

    These principles, however, do not apply to the instant case

because the court in the order under review did not transfer

legal     custody    from    a    parent    to   a   nonparent,   but   instead

transferred legal and physical custody from DSS to a relative.

We therefore need not address the arguments of father and DSS

concerning that finding, as it was unnecessary and superfluous.

We note, nonetheless, that at the time when the court awards

permanent custody of J.K., it must make these determinations

prior to awarding custody to a nonparent.

    DSS and father also contend that Judge Wells improperly

decided factual issues that had been previously decided by Judge

Love in the adjudication and disposition order. They argue that

Judge Wells improperly overruled a decision of another district

court judge without a showing of changed circumstances.                   Father

further     argues    that       the   doctrine      of   collateral    estoppel

prevented Judge Wells from re-litigating the issue of whether

domestic    violence    occurred       in   grandparents’    home.      He   also

argues that the court received improper evidence in the form of

unsworn testimony from grandparents’ attorney and reports from a
                                  -15-
psychologist obtained subsequent to the hearing.              We are not

persuaded.

    As a general principle, “no appeal lies from one Superior

Court judge to another; that one Superior Court judge may not

correct another’s errors of law; and that ordinarily one judge

may not modify, overrule, or change the judgment of another

Superior    Court   judge   previously    made   in   the   same   action.”

Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484,

488 (1972).         This principle also applies to district court

judges.      Shamley v. Shamley, 117 N.C. App. 175, 183, 455 S.E.2d

435, 439-40 (1994).         The rule, however, does not apply if the

court’s ruling is entered at a different stage of a proceeding

and the materials considered by the subsequent judge are not the

same.      Smithwick v. Crutchfield, 87 N.C. App. 374, 376, 361

S.E.2d 111, 113 (1987).          During the permanency planning and

review stage of a juvenile proceeding a court is not bound by

previous orders “when changing needs and circumstances impact

future permanency plans.”         In re C.E.L., 171 N.C. App. 468,

478, 615 S.E.2d 427, 432 (2005).           The court at the permanency

planning hearing is required to “consider information” from the

parties to the proceeding “and any other person or agency that

will aid in the court’s review.”         N.C. Gen. Stat. § 7B-906.1(c).
                                            -16-
Further,      “[t]he   court          may   consider     any     evidence,        including

hearsay 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.”       Id.

      We also note that                “[t]he purpose of abuse, neglect and

dependency proceedings is for the court to determine whether the

juvenile should be adjudicated as having the status of abused,

neglected or dependent.”                In re J.S., 182 N.C. App. 79, 86, 641

S.E.2d 395, 399 (2007).                “Both the existence of the condition of

neglect and its degree are by nature subject to change.                                Thus,

an adjudication that a child was neglected on a particular prior

day does not bind the trial court with regard to the issues

before it at the time of a later termination hearing[.]”                               In re

Ballard,      311   N.C.        708,    715,    319    S.E.2d       227,    232    (1984).

Collateral     estoppel         applies     only   when    (1)      there    is    a   prior

action     resulting       in     a     final   judgment       on    the    merits;      (2)

identical issues are involved; and (3) the issue was actually

litigated and determined in the prior action and was necessary

to the judgment.               McDonald v. Skeen, 152 N.C. App. 228, 230,

567 S.E.2d 209, 211 (2002).
                                   -17-
    Here, the doctrine of collateral estoppel does not apply

because there has not been a final judgment or resolution of

this proceeding, which is still ongoing with further proceedings

contemplated.     The order entered by Judge Love suggests that he

did not actually conduct an evidentiary hearing.          The preamble

to that order states:

            Prior to the call of the cases, the parties
            announced to the Court that a settlement had
            been   reached   as   is  embodied   by   the
            Memorandum of Order attached hereto and
            incorporated by reference.   Pursuant to the
            parties’   stipulations   and    the   signed
            consents     of     the    Memorandum     and
            representations by counsel for the purposes
            of adjudication, the Court finds as follows:

            BASED UPON THE EVIDENCE, AND WITH CONSENT
            AND   STIPULATION   OF   THE   PARTIES, THE
            FOLLOWING FACTS HAVE BEEN PROVEN BY CLEAR,
            COGENT AND CONVINCING EVIDENCE:

Judge Love then proceeded to find as facts, inter alia, that the

juveniles   witnessed   domestic    violence   in   grandparents’   home

while their mother was residing there and that J.K. was “in

counseling due to experiencing domestic violence.”

    At the permanency planning hearing, Judge Wells received

evidence, as permitted by N.C. Gen. Stat. § 7B-906.1(c), from

the maternal grandmother, who testified that she had been caring

for J.K. full time pursuant to the voluntary custody agreement

since June of 2010.     She denied assaulting mother and described
                                      -18-
the incident mentioned in the adjudication order as merely a

“tug-of-war” over possession of a purse as mother was moving out

of her house with the juveniles.             Judge Wells also considered a

report from J.K.’s psychologist dated 1 March 2013, in which the

therapist    stated   that     during     the   course    of    eight    sessions

beginning    21   September    2012     through   the    last   session    on    14

February 2013, J.K. never reported “any instances of domestic

violence/significant conflict occurring within his grandparent’s

home.”      The psychologist also noted “[J.K.] described having

positive relationships with his grandparents, mother, and sister

throughout treatment.”         Mother also testified at the permanency

review and planning hearing that she does not have “a violent

history” with her mother, although they will “bicker and argue”

with each other.

    Judge     Wells   had     different    materials     before    her    at    the

permanency planning and review hearing.                  She was tasked with

determining the best interests of the juveniles as of that time,

a different determination than what was made at the adjudication

phase of the proceedings.         The arguments of DSS and father are

overruled.

    DSS also contends that the court abused its discretion by

awarding custody of J.K. and L.K. to the maternal grandmother
                                             -19-
despite evidence of domestic violence and alcohol abuse in the

home.      Father additionally argues                that the court abused its

discretion by removing J.K. from a home where he was thriving.

We disagree.

      “A ruling committed to a trial court’s discretion is to be

accorded great deference and will be upset only upon a showing

that it was so arbitrary that it could not have been the result

of a reasoned decision.”              White v. White, 312 N.C. 770, 777, 324

S.E.2d 829, 833 (1985).               Findings of fact numbers 33-35, 38-40,

and   46-47    show      that   the    two    juveniles      have   a   nurturing   and

relaxed relationship with each other which is in their best

interests to maintain and that placement with grandparents is

the only available kinship placement for both.                      Findings of fact

numbers 36-37 and 43-46 indicate that grandparents have been

providing      for    the   children’s         needs    of    love,     companionship,

medical and mental health treatments, and a safe, stable home.

Findings of fact are binding “where there is some evidence to

support those findings, even though the evidence might sustain

findings to the contrary.”                   In re Montgomery, 311 N.C. 101,

110-11, 316 S.E.2d 246, 252-53 (1984).                       We hold that there is

evidence      in   the    record      to   support     the   findings.       As   these
                              -20-
findings reflect a reasoned decision by the trial court, we find

no abuse of discretion.

    These arguments are without merit.

    AFFIRMED.

    Judges CALABRIA and McCULLOUGH concur.

    Report per Rule 30(e).
