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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-405 NORTH CAROLINA COURT OF APPEALS Filed: 21 December 2004

IN THE MATTER OF: T.H and T.H., Minor Children.

Cabarrus County Nos. 02 J 217 02 J 218

Appeal by respondent from order entered 6 November 2003 by Judge Donna H. Johnson in Cabarrus County District Court. Heard in the Court of Appeals 3 November 2004. Kathleen Arundell Widelski, petitioner-appellee Cabarrus County Department of Social Services; and Attorney Advocate Victoria K. Bost for Guardian Ad Litem-appellee. Carol Ann Bauer for respondent-appellant. THORNBURG, Judge. Respondent appeals from a permanency planning review order entered on 6 November 2003. T.H. and T.H. were born on 7 June 2002 to respondent-father and their mother, who is not a party to this appeal. Because of

the mother's prior history with Cabarrus County Department of Social Services (DSS), including the fact that other children had previously been removed from her custody, as well as the fact that she had mental limitations, a DSS social worker visited the DSS

hospital on 8 June 2002, shortly after the twins' birth.

-2allowed respondent and the mother to retain custody of the twins because respondent agreed to be the primary caregiver to the twins and because respondent's parents agreed to be safety responses when the respondent was not able to watch the twins. After leaving the

hospital, respondent, the mother and the twins went to live with respondent's parents in their home. Around 11 November 2002, DSS received another report alleging that the twins were being neglected, including allegations relating to verbal abuse, an unclean living environment, concerns about the twins' health and disputes between the twins' mother and their paternal grandparents. A petition alleging neglect was filed on 27 November 2002. DSS was awarded nonsecure custody of the twins on

the same date, but continued placement of the twins with respondent and his parents. However, after a home study was conducted and

discussions were held with the twins' pediatrician, the twins were removed from respondent's home on 21 February 2003. On 7 April 2003, the trial court adjudicated the twins

neglected and dependent. entered on 24 April

The trial court's dispositional order, concluded that reunification with

2003,

respondent was the permanent plan, but the trial court continued custody with DSS. The trial court requested that respondent

complete a psychological evaluation, a substance abuse assessment and random drug screenings, anger management assessment and

parenting classes. On 13 June 2003, a review hearing was held, where it was determined that respondent had not received a substance abuse or

-3anger management had assessment made minimal and the trial On court 7 found that 2003,

respondent

progress.

August

respondent's progress was again reviewed, and at that time the trial court received a psychological evaluation of respondent which indicated he had a full-scale IQ of 70, one point away from the legal definition of mental retardation. At that point, the trial

court ordered that a guardian ad litem be appointed to respondent. The trial court also heard evidence regarding a continuing lack of progress from respondent. The trial court continued custody of the children with DSS and determined that the twins' permanent plan should continue to be reunification with respondent, provided he adequately address the trial court's concerns. On 6 November 2003, a permanency planning hearing was held. DSS reports indicated that respondent had failed to secure

independent housing, had not obtained a driver's license, had failed to submit to random drug screens and had made minimal progress in addressing his problems. The trial court changed the

children's permanent plan to adoption. Respondent appeals from the permanency planning review order. Respondent argues on appeal: (1) that the trial court erred in not appointing a guardian ad litem to respondent prior to the permanency planning review hearing on 6 November 2003; and (2) that the trial court erred in finding that respondent made "minimal progress" in addressing the issues that led to the twins' placement in foster care and not making appropriate findings of fact

-4concerning the permanency planning order under N.C. Gen. Stat.

Download 04-405-5.pdf

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