{ "id": 8186088, "name": "IN THE MATTER OF: L.B.", "name_abbreviation": "In re L.B.", "decision_date": "2007-07-03", "docket_number": "No. COA06-1295", "first_page": "442", "last_page": "454", "citations": [ { "type": "official", "cite": "184 N.C. App. 442" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "625 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635064, 12635065, 12635063 ], "year": 2006, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0779-02", "/se2d/625/0779-03", "/se2d/625/0779-01" ] }, { "cite": "618 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633847 ], "year": 2005, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0241-01" ] }, { "cite": "617 S.E.2d 687", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633749 ], "year": 2005, "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0687-01" ] }, { "cite": "635 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636864, 12636862, 12636863 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/635/0059-01", "/se2d/635/0059-01", "/se2d/635/0059-01" ] }, { "cite": "625 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635050 ], "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0594-01" ] }, { "cite": "636 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637106 ], "year": 2006, "pin_cites": [ { "page": "796" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0787-01" ] }, { "cite": "641 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637854 ], "year": 2007, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0404-01" ] }, { "cite": "639 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637502 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "29" }, { "page": "32", "parenthetical": "\"[W]e hold that the trial court erred by leaving visitation within the discretion of the Johnsons.\"" }, { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/se2d/639/0023-01" ] }, { "cite": "502 S.E.2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659813, 1659846, 1659785, 1659834, 1659900 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0281-04", "/nc/348/0281-02", "/nc/348/0281-01", "/nc/348/0281-05", "/nc/348/0281-03" ] }, { "cite": "496 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "616" }, { "page": "616" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656424 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "663" }, { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0658-01" ] }, { "cite": "374 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "469" }, { "page": "468" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526924 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "354" }, { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0351-01" ] }, { "cite": "582 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2003, "pin_cites": [ { "page": "660" }, { "page": "660" }, { "page": "660" }, { "page": "662", "parenthetical": "emphasis added" }, { "page": "660" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 75", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954022 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "80" }, { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0075-01" ] }, { "cite": "360 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797279 ], "year": 2006, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0360-01" ] }, { "cite": "173 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352791 ], "year": 2005, "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0001-01" ] }, { "cite": "487 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139653, 139565, 139506, 139450, 139515 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0278-05", "/nc/346/0278-02", "/nc/346/0278-01", "/nc/346/0278-04", "/nc/346/0278-03" ] }, { "cite": "482 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "754-55" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 736", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11871689 ], "pin_cites": [ { "page": "740" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0736-01" ] }, { "cite": "173 N.C. App. 43", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352841 ], "year": 2005, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0043-01" ] }, { "cite": "360 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3790365, 3795301, 3789994, 3798602, 3787890, 3792500, 3796951, 3787645, 3789086 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0534-03", "/nc/360/0534-01", "/nc/360/0534-08", "/nc/360/0534-04", "/nc/360/0534-02", "/nc/360/0534-06", "/nc/360/0534-07", "/nc/360/0534-05", "/nc/360/0534-09" ] }, { "cite": "175 N.C. App. 719", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353200 ], "pin_cites": [ { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0719-01" ] }, { "cite": "313 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "195", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 501", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526723 ], "year": 1984, "pin_cites": [ { "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0501-01" ] }, { "cite": "517 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "926", "parenthetical": "mandating that the \"trial court must enter written findings of fact\" when the controlling statute only required that \"the court shall make findings of fact.\"" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 460", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145414 ], "year": 1999, "pin_cites": [ { "page": "466", "parenthetical": "mandating that the \"trial court must enter written findings of fact\" when the controlling statute only required that \"the court shall make findings of fact.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0460-01" ] }, { "cite": "360 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787934 ], "year": 2006, "pin_cites": [ { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0588-01" ] }, { "cite": "182 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8168382 ], "year": 2007, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0052-01" ] }, { "cite": "299 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "631" } ], "opinion_index": 0 }, { "cite": "307 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564174 ], "year": 1983, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0563-01" ] }, { "cite": "181 N.C. App. 174", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373277 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "187" }, { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0174-01" ] } ], "analysis": { "cardinality": 942, "char_count": 29093, "ocr_confidence": 0.746, "pagerank": { "raw": 2.1574503789402706e-07, "percentile": 0.7693714961760318 }, "sha256": "b2b5150f6aee294209532a100221260f84b37190b83ef60c3f85c1b44624a780", "simhash": "1:ebbbd26a577d8ff5", "word_count": 4835 }, "last_updated": "2023-07-14T19:54:59.559545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and LEVINSON concur." ], "parties": [ "IN THE MATTER OF: L.B." ], "opinions": [ { "text": "JACKSON, Judge.\nTrade B. (\u201crespondent\u201d) is the mother of L.B., the juvenile who is the subject of this appeal. For the following reasons, we affirm in part and reverse in part the trial court\u2019s order.\nBy nonsecure custody order dated 17 August 2004, L.B. was placed in the custody of the Wayne County Department of Social Services (\u201cDSS\u201d). The nonsecure custody order was based on a juvenile petition, signed and verified on 19 August 2004, alleging that L.B. was neglected and dependent. On 23 November 2005, the trial court filed a permanency planning order, and respondent appealed to this Court. See In re L.B., 181 N.C. App. 174, 639 S.E.2d 23 (2007). As such, the facts of this case are stated in detail in the earlier opinion.\nSubsequent to the trial court\u2019s 23 November 2005 order but before the 2 January 2007 filing of this Court\u2019s opinion in respondent\u2019s prior appeal, the trial court entered an order on 28 February 2006 following a review hearing on 26 January 2006. In that order, the trial court changed the permanent plan from reunification with respondent to guardianship with L.B.\u2019s custodians, Steven and Doris Johnson (\u201cthe Johnsons\u201d). The trial court left respondent\u2019s visitation to the Johnsons\u2019 discretion and determined that there was no need for further review hearings. Thereafter, respondent filed notice of appeal.\nIn her first argument, respondent contends that because the initial juvenile petition was not signed and verified until 19 August 2004, two days after the order for nonsecure custody was filed and one day after the summons was issued, all subsequent orders, including the 28 February 2006 review order, should be vacated for lack of subject matter jurisdiction. In respondent\u2019s prior appeal, however, this Court held that although \u201cthe trial court did not have jurisdiction when the order for nonsecure custody was filed and summons was issued,\u201d the trial court nevertheless acquired subject matter jurisdiction once the juvenile petition was signed and verified in accordance with North Carolina General Statutes, sections 7B-403 and 7B-405. L.B., 181 N.C. App. at 187, 639 S.E.2d at 29. \u201cTherefore, the trial court had authority to enter its permanency planning order.\u201d Id. As the holding in respondent\u2019s prior appeal with respect to this jurisdictional issue is the law of the case, see N.C. Nat\u2019l Bank v. Va. Carolina Builders, 307 N.C. 563, 566, 299 S.E.2d 629, 631 (1983), we hold that the trial court possessed subject matter jurisdiction to enter the 28 February 2006 review order. Accordingly, respondent\u2019s first assignment of error is overruled.\nIn her second argument, respondent contends that the trial court erred: (1) in failing to comply with the mandates of North Carolina General Statutes, section 7B-906 before waiving further review hearings; (2) in delegating judicial responsibility for visitation to L.B.\u2019s custodians; (3) in considering and incorporating reports and summaries submitted by DSS and the guardian ad litem; (4) in making findings which recited testimony or statements of the court; (5) in calling respondent as a witness at the review hearing; and (6) in findings of fact numbers 19 and 21 through 25, on the grounds that they are not supported by competent evidence and, in turn, do not support the court\u2019s conclusions. We review these arguments in the order presented.\nFirst, respondent contends that the trial court failed to comply with North Carolina General Statutes, section 7B-906(b). We agree.\nPursuant to North Carolina General Statutes, section 7B-906(a), \u201c[i]n any case where custody is removed from a parent, guardian, custodian, or caretaker the court shall conduct a review hearing within 90 days from the date of the dispositional hearing and shall conduct a review hearing within six months thereafter.\u201d N.C. Gen. Stat. \u00a7 7B-906(a) (2005). The trial court, however, may dispense with review hearings if the court finds the following by clear, cogent, and convincing evidence:\n(1) The juvenile has resided with a relative or has been in the custody of another suitable person for a period of at least one year;\n(2) The placement is stable and continuation of the placement is in the juvenile\u2019s best interests;\n(3) Neither the juvenile\u2019s best interests nor the rights of any party require that review hearings be held every six months;\n(4) All parties are aware that the matter may be brought before the court for review at any time by the filing of a motion for review or on the court\u2019s own motion; and\n(5) The court order has designated the relative or other suitable person as the juvenile\u2019s permanent caretaker or guardian of the person.\nN.C. Gen. Stat. \u00a7 7B-906(b) (2005). Failure to find all of these criteria constitutes reversible error. See In re R.A.H., 182 N.C. App. 52, 62, 641 S.E.2d 404, 410 (2007).\nPreliminarily, we note that the statute does not state whether the trial court must make the required findings in writing. \u201cIn matters of statutory construction, our task is to determine the intent of the General Assembly.\u201d In re T.R.P., 360 N.C. 588, 600, 636 S.E.2d 787, 796 (2006). Written findings of fact will ensure that the trial court, before waiving the holding of further review hearings, carefully considers each of the five enumerated factors in section 7B-906(b). Such findings also will provide an opportunity for meaningful appellate review. See Sain v. Sain, 134 N.C. App. 460, 466, 517 S.E.2d 921, 926 (1999) (mandating that the \u201ctrial court must enter written findings of fact\u201d when the controlling statute only required that \u201cthe court shall make findings of fact.\u201d). Accordingly, we hold that the trial court must make written findings of fact satisfying each of the enumerated criteria in section 7B-906(b).\nIn the instant case, the trial court complied with portions of section 7B-906. First, section 7B-906(b)(2) required that the trial court find that \u201c[t]he placement is stable and continuation of the placement is in [L.B.\u2019s] best interests.\u201d N.C. Gen. Stat. \u00a7 7B~906(b)(2) (2005). The trial court found as fact the following:\n25. That the best interest of permanence for the children, even though this is not a permanency planning hearing, is to leave the children where they are safe.\n26. That Steven and Doris Johnson continue to be fit and proper persons to have custody of the juvenile.\nThese findings were supported by competent evidence. Specifically, the guardian ad litem\u2019s report states that \u201c[t]he Johnsons provide a loving, stable home for these children [including L.B.] and offer them love and parental guidance, which is what the children need.\u201d The DSS report echoed the guardian ad litem\u2019s statement, noting that \u201c[t]he children continue to do well in their current placement\u201d and \u201c[t]he children . . . finally have some stability.\u201d Accordingly, the trial complied with section 7B-906(b)(2).\nThe trial court also complied with section 7B-906(b)(5), which required the trial court to find that the custody order designated L.B.\u2019s \u201cpermanent caretaker or guardian of the person.\u201d N.C. Gen. Stat. \u00a7 7B-906(b)(5) (2005). Specifically, the trial court satisfied section 7B-906(b)(5) with findings of fact numbers 2 and 3, in which the court found that the Johnsons were L.B.\u2019s custodians and \u201c[t]hat the custodians were designated as guardians of the juvenile on October 27, 2005.\u201d\nThe trial court, however, failed to make findings with respect to sections 7B-906(b)(l), (3), and (4). First, pursuant to section 7B-906(b)(l), the trial court was required to find that L.B. had resided with a relative or been in the custody of another suitable person for at least one year. See N.C. Gen. Stat. \u00a7 7B-906(b)(l) (2005). The trial court found that the juveniles continue to reside with the Johnsons, who were designated as their guardians. However, the statute expressly requires a finding that L.B. was in the custody of a relative or suitable person for at least one year, and the trial court failed to make such a finding.\nNext, section 7B-906(b)(3) required the trial-court to find that neither L.B.\u2019s best interests nor the rights of any other party, including respondent, required the continued holding of review hearings every six months. See N.C. Gen. Stat.. \u00a7 7B-906(b)(3) (2005). The trial court made the following findings of fact: .\n9. That [respondent] had an opportunity to call witnesses and did not do so.\n12. That [respondent] was previously ordered to bring all the belongings of the juvenile and the half siblings ... to the children but has not done so.\n13. That [respondent] informed the Court that she does not have any of the possessions of the juveniles.\n19. That [respondent] did not bring a Christmas present for this juvenile when she brought Christmas presents for the half siblings of the juvenile ....\n21. That [respondent] calls on Tuesdays, but the juvenile and the half sister of the juvenile do not want to talk to [respondent].\n22. That [respondent] refuses to go to the home of the custodians.\n23. That. . . [respondent] refuses to go to Johnston County.\n24. That the Court informed [respondent] that it was her responsibility to see her children and not the responsibility of the Johnsons to transport the children.\nThese findings were supported by competent evidence. Nevertheless, the trial court must make a written finding that neither L.B.\u2019s best interests nor the rights of any other party, including respondent, require the continued holding of review hearings every six months. In the instant case, the trial court failed to do so as required by section 7B-906(b)(3).\nFinally, section 7B-906(b)(4) requires the trial court to find that all parties are aware that a review may be held at any time by the filing of a motion for review or on the court\u2019s own motion. See N.C. Gen. Stat. \u00a7 7B-906(b)(4) (2005). The trial court made no such finding of fact and, indeed, the court sent the contrary signal to respondent by expressly relieving respondent\u2019s trial counsel of any further responsibility in the matter without explaining to respondent that she either could seek to have her counsel reappointed or could file motions pro se with the court. In sum, the record is devoid of any finding that respondent was aware that she was entitled to another review hearing by filing a motion for review.\nAs the trial court\u2019s order fails to satisfy the requirements of sections 7B-906(b)(l), (3), and (4), we reverse on this issue and remand the case to the trial court to issue a new order with written findings of fact consistent with this opinion and the requirements of section 7B-906(b).\nRespondent next contends that the trial court erred in leaving respondent\u2019s visitation rights to the discretion of the Johnsons. On 16 January 2007, the guardian ad litem filed a motion to dismiss this portion of respondent\u2019s brief on the grounds that the issue is moot. Specifically, the guardian ad litem noted that the language in the instant review order concerning visitation is substantively identical to the portion of the 27 October 2005 permanency planning order, which this Court reversed in respondent\u2019s prior appeal. See L.B., 181 N.C. App. at 192, 639 S.E.2d at 32 (\u201c[W]e hold that the trial court erred by leaving visitation within the discretion of the Johnsons.\u201d). On 31 January 2007, this Court granted the guardian ad litem\u2019s motion to dismiss respondent\u2019s brief in part, ruling that respondent\u2019s appeal as to the visitation issue has been rendered moot. Accordingly, we decline to review this argument.\nNext, respondent argues that the trial court erred in considering and incorporating reports submitted by DSS and the guardian ad litem. Respondent made this identical argument in her prior appeal, and this Court held that \u201cthe trial court properly incorporated DSS and guardian ad litem reports and properly made findings of fact. . . based on these reports.\u201d Id. at 193, 639 S.E.2d at 33. Similarly, in the trial court\u2019s 28 February 2006 review order, the court incorporated reports submitted by DSS and the guardian ad litem, but also made numerous independent findings of fact. As such, the trial court did not improperly delegate its fact-finding duty. Respondent\u2019s assignment of error is overruled.\nIn her next argument, respondent challenges findings of fact numbers 13, 15 through 18, 20, and 24 on the grounds that the trial court simply recited respondent\u2019s statements and the court\u2019s statements at the hearing. We disagree.\nPreliminarily, we note that two of the findings of fact to which respondent assigns error simply state that the trial court called a witness to testify. In finding of fact number 18, the court found \u201c[tjhat the Court called the mother as a witness,\u201d and in finding of fact number 20, the court found \u201c[t]hat the Court also called Doris Johnson as a witness.\u201d These findings do not constitute recitation of testimony or statements of the trial court.\nAs this Court has noted, \u201cverbatim recitations of the testimony of each witness do not constitute findings of fact by the trial judge, because they do not reflect a conscious choice between the conflicting versions of the incident in question which emerged from all the evidence presented.\u201d In re Green, 67 N.C. App. 501, 505 n.1, 313 S.E.2d 193, 195 (1984) (emphasis in original). Respondent is correct that findings of fact numbers 13, 15, 16, 17, and 24 are recitations of statements made during the review hearing. However, notwithstanding the five findings-of fact that constitute recitation of testimony and statements by the trial court, the remaining findings of fact adequately support the trial court\u2019s conclusions. See In re S.W., 175 N.C. App. 719, 724, 625 S.E.2d 594, 597 (\u201c[W]e hold that the remaining findings of. fact are more than sufficient to support the trial court\u2019s conclusions of law complained of by respondent.\u201d), disc. rev. denied, 360 N.C. 534, 635 S.E.2d 59 (2006). Accordingly, respondent\u2019s assignment of error is overruled.\nNext, respondent contends that the trial court erred in calling respondent as a witness at the review hearing. Respondent alleges that the trial judge acted as an adverse party in calling respondent as a witness, and that as a result of the trial court\u2019s alleged impartiality, the review order should be reversed. We disagree.\nPursuant to Rule 614 of the North Carolina Rules of Evidence, \u201c[t]he court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 614(a) (2005). Furthermore, \u201c[t]he court may interrogate witnesses, whether called by itself or by a party.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 614(b) (2005). A trial court\u2019s actions pursuant to Rule 614 are reviewed under an abuse of discretion standard. See State v. Bethea, 173 N.C. App. 43, 52, 617 S.E.2d 687, 693 (2005).\nAs this Court has noted, \u201c[trial] [c]ourts . . . rarely call witnesses, and rightly so because it is hard for judges to maintain impartiality while becoming an active participant in summoning witnesses.\u201d Grasty v. Grasty, 125 N.C. App. 736, 740, 482 S.E.2d 752, 754-55 (internal quotation marks and citation omitted), disc. rev. denied, 346 N.C. 278, 487 S.E.2d 545 (1997). However, the danger of impartiality is relevant primarily in a jury trial. This is underscored by the commentary to Rule 614, which provides that \u201c[t]he court may not in calling or interrogating a witness do so in a manner as to suggest an opinion as to the weight of the evidence or the credibility of the witness in violation of [North Carolina General Statutes, section] 15A-1222 or Rule 51(a) [of the Rules of Civil Procedure].\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 614 cmt. (2005). In a bench proceeding, such as the review hearing in the case sub judice, there is no danger in the trial court suggesting an opinion as to the weight of the evidence or the credibility of certain witness as the trial court is the ultimate arbiter of such issues. See In re P.L.P., 173 N.C. App. 1, 14, 618 S.E.2d 241, 249 (2005), aff'd, 360 N.C. 360, 625 S.E.2d 779 (2006) (per curiam). Therefore, we hold that the trial court did not abuse its discretion in calling respondent as a witness, and accordingly, respondent\u2019s assignment of error is overruled.\nRespondent next contends that the trial court erred in making findings of fact numbers 19 and 21 through 25, on the grounds that they are not supported by sufficient competent evidence and, in turn, do not support the court\u2019s conclusions of law. We disagree.\nAs stated supra with respect to respondent\u2019s argument concerning North Carolina General Statutes, section 7B-906(b), findings of fact numbers 19 and 21.through 25 are supported by competent evidence. In fact, respondent concedes in her brief that the DSS summary supports \u201cthe findings about the 2005 Christmas presents,\u201d i.e., finding of fact number 19. Further, these findings of fact demonstrate: (1) the lack of concern and love respondent has shown for L.B.; (2) the lack of interest L.B. has in maintaining a relationship with respondent; and (3) the stable, safe, and nurturing home that the Johnsons continue to provide for L.B. and her half-siblings. As such, these findings fully support the trial court\u2019s conclusion \u201c[t]hat the best interest of the juvenile will be promoted and served by continuing custody with Steven and Doris Johnson, who have been designated as guardians of the juvenile.\u201d Respondent\u2019s assignment of error, therefore, is overruled.\nIn her final argument, respondent contends that she has been denied due process because the tape recordings of the 26 January 2006 hearing were destroyed. We disagree.\nPursuant to North Carolina General Statutes, section 7B-806, \u201c[a]ll adjudicatory and dispositional hearings shall be recorded by stenographic notes or by electronic or mechanical means.\u201d N.C. Gen. Stat. \u00a7 7B-806 (2005). As this Court has held, \u201c[a] party, in order to prevail on an assignment of error under section 7B-806, must also demonstrate that the failure to record the evidence resulted in prejudice to that party.\u201d In re Clark, 159 N.C. App. 75, 80, 582 S.E.2d 657, 660 (2003).\nThis Court has stated that in situations \u201c[w]here a verbatim transcript of the proceedings is unavailable, there are \u2018means . . . available for [a party] to compile a narration of the evidence, i. e., reconstructing the testimony with the assistance of those persons present at the hearing.\u2019 \u201d Id. at 80, 582 S.E.2d at 660 (quoting Miller v. Miller, 92 N.C. App. 351, 354, 374 S.E.2d 467, 469 (1988)). However,, \u201cwhere the appellant has done all that she can [] do [to reconstruct the transcript], but those efforts fail because of some error on the part of our trial courts, it would be inequitable to simply conclude that the mere absence of the recordings indicates the failure of appellant to fulfill that responsibility.\u201d Coppley v. Coppley, 128 N.C. App. 658, 663, 496 S.E.2d 611, 616, disc. rev. denied, 348 N.C. 281, 502 S.E.2d 846 (1998).\nIn the case sub judice, respondent filed a motion on 11 July 2006 for an extension of time to prepare the record on appeal. In her motion, respondent alleged that over two weeks prior, on 23 June 2006, the Wayne County Clerk\u2019s Office informed respondent\u2019s attorney on appeal that the electronic recordings of the 26 January 2006 review hearing had been destroyed by accident. Respondent alleged that \u201c[b]ecause the tape recordings were erased, there can be no transcript of the hearing.\u201d Respondent sought to prepare a narrative of the review hearing, but anticipated that it would take at least thirty days to construct the narrative and approximately fifteen days thereafter to complete the proposed record on appeal. Ultimately, respondent requested until 30 August 2006 to serve a proposed record on appeal. On 14 July 2006, this Court extended the deadline to serve the proposed record on appeal until 15 August 2006 and stated that \u201c[n]o further extensions of time shall be allowed in the absence of a showing of extraordinary cause.\u201d Four more weeks elapsed when on 11 August 2006, respondent\u2019s trial counsel sent a letter to respondent\u2019s appellate attorney, stating,\nI just returned from secured leave on August 9, 2006.1 was in DSS court all day on August 10, 2006. At present, it is taking longer than I expected to recreate the record.\nBecause of the above-referenced circumstances I will need an extension of time.\nThe record is devoid of any further action taken to reconstruct a narrative of the 26 January 2006 review hearing.\nIt is well-established that \u201c [i]t is the appellant\u2019s responsibility to make sure that the record on appeal is complete and in proper form.\u201d Miller, 92 N.C. App. at 353, 374 S.E.2d at 468. Although respondent\u2019s trial attorney indicated the need for an additional extension of time, respondent made no attempt to request any further extensions of time from this Court, despite this Court\u2019s statement in its 14 July 2006 order that it may have permitted an additional extension of time with \u201ca showing of extraordinary cause.\u201d The record on appeal, without any transcript or narrative from the 26 January 2006 review hearing, was settled on 22 September 2006, filed on 26 September 2006, and docketed 6 October 2006. At no point did respondent make any further attempt to provide this Court with a narrative of the proceedings in the trial court. As such, it cannot be said that respondent \u201chas done all that she can [] do [to reconstruct the transcript].\u201d Coppley, 128 N.C. App. at 663, 496 S.E.2d at 616.\nNevertheless, assuming arguendo that respondent had \u201cdone all that she [could] do,\u201d id., it is incumbent upon respondent to demonstrate prejudice. See Clark, 159 N.C. App. at 80, 582 S.E.2d at 660. In her brief, respondent makes the bald assertion that \u201c[s]ome of the record would have included the trial judge\u2019s statements, questions, and assertions which would evidence his bias and lack of impartiality.\u201d Respondent further notes that she has challenged \u201cseveral findings of the court as not being supported by any evidence presented at the hearing.\u201d \u201c[Although respondent has generally asserted that the failure to record all of the testimony . . . was prejudicial, she points to nothing specific in the record to support her argument.\u201d Id. at 83, 582 S.E.2d at 662 (emphasis added). This Court has held that \u201cthe use of general allegations is insufficient to show reversible error resulting from the loss of specific portions of testimony caused by gaps in recording.\u201d Id. at 80, 582 S.E.2d at 660. Regardless, we have held herein that numerous findings of fact in the trial court\u2019s review order are supported by competent evidence and that those findings, in turn, amply support the court\u2019s conclusions of law. Accordingly, respondent\u2019s assignment of error is overruled.\nRespondent\u2019s remaining assignments of error not argued in her brief are deemed abandoned. See N.C. R. App. P. 28(b)(6) (2006).\nAffirmed in part; Reversed and Remanded in part.\nJudges McGEE and LEVINSON concur.\n. Respondent also is the mother of R.B. and A.M., juveniles who are the subject of a separate appeal in COA06-1296.\n. These findings employ such language as \u201cthe mother informed the Court\u201d and \u201cthe Court informed the mother.\u201d\n. Respondent alleges that \u201c[t]he court did not call any other party as a witness, nor did it call a DSS social worker, a guardian, a psychologist, a therapist, or a child.\u201d Respondent apparently overlooks finding of fact number 20, in which the trial court stated that it \u201calso called Doris Johnson [a guardian] as a witness.\u201d\n. See N.C. Gen. Stat. \u00a7 15A-1222 (2005) (providing that the trial court may not \u201cexpress during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.\u201d (emphasis added)); N.C. Gen. Stat. \u00a7 1A-1, Rule 51(a) (2005) Q\u2018In charging the jury in any action governed by these rules, a judge shall not give an opinion as to whether or not a fact is fully or sufficiently proved . .. .\u201d (emphasis added)).", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "E.B. Borden Parker, for Wayne County Department of Social Services, petitioner-appellee.", "Jeremy B. Smith, for Guardian ad Litem.", "Jeffrey L. Miller, for respondent-mother-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: L.B.\nNo. COA06-1295\n(Filed 3 July 2007)\n1. Appeal and Error\u2014 appealability \u2014 subject matter jurisdiction \u2014 law of the case\nThe trial court possessed subject matter jurisdiction to enter the 28 February 2006 review order in a child neglect case, because: (1) in respondent\u2019s prior appeal, the Court of Appeals held that although the trial court did not have jurisdiction when the order for nonsecure custody was filed and summons was issued, the trial court nevertheless acquired subject matter jurisdiction once the juvenile petition was signed and verified in accordance with N.C.G.S. \u00a7\u00a7 7B-403 and 7B-405; and (2) the holding in respondent\u2019s prior appeal with respect to this jurisdictional issue is the law of the case.\n2. Child Abuse and Neglect\u2014 waiver of further review hearings \u2014 insufficient findings\nThe trial court erred in a child neglect case by failing to comply with N.C.G.S. \u00a7 7B-906(b)(l), (3), and (4) in its order waiving further review hearings, and the case is reversed on this issue and remanded for the issuance of a new order with written findings of fact with respect to whether: (1) the minor child was in the custody of a relative or suitable person for at least one year; (2) neither the minor child\u2019s best interests nor the rights of any other party, including respondent, required the continued holding of review hearings every six months; and (3) all parties are aware that a review may be held at any time by the filing of a motion for review or on the court\u2019s own motion.\n3. Appeal aud Error\u2014 appealability \u2014 mootness\nAlthough respondent contends the trial court erred in a child neglect case by leaving her visitation rights to the discretion of the minor child\u2019s guardians, this issue will not be reviewed because respondent\u2019s appeal on the visitation issue has been rendered moot when the language in the instant review order concerning visitation is substantively identical to the portion of the 27 October 2005 permanency planning order which the Court of Appeals reversed in respondent\u2019s prior appeal.\n4. Child Abuse and Neglect\u2014 consideration and incorporation of reports submitted by DSS and guardian ad litem\u2014 independent findings\nThe trial court did not err in a child neglect case by considering and incorporating reports submitted by DSS and the guardian ad litem, because: (1) the Court of Appeals addressed this identical argument in respondent\u2019s prior appeal; and (2) the trial court did not improperly delegate its factfinding duty when it made numerous independent findings in addition to incorporating reports submitted by DSS and the guardian ad litem in the 28 February 2006 review order.\n5. Child Abuse and Neglect\u2014 findings of fact \u2014 recitation of testimony and statements\nThe trial court did not err in a child neglect case by its findings of fact that are recitations of statements made during the review hearing where the remaining findings of fact adequately support the trial court\u2019s conclusions.\n6. Evidence\u2014 trial court calling witness on own motion\u2014 bench trial\nThe trial court did not abuse its discretion in a child neglect case by calling respondent as a witness at the review hearing, because: (1) N.C.G.S. \u00a7 8C-1, Rule 614 allows the trial court, on its own motion qr at the suggestion of a party, to call witnesses and all parties are entitled to cross-examine witnesses thus called; and (2) there is no danger in the trial court suggesting an opinion as to the weight of the evidence or the credibility of certain witnesses in a bench trial when the trial court is the ultimate arbiter of such issues.\n7. Child Abuse and Neglect\u2014 findings of fact \u2014 sufficiency of evidence\nCompetent evidence supported the trial court\u2019s findings of fact demonstrating the lack of concern and love respondent has shown for her child, the child\u2019s lack of interest in maintaining a relationship with respondent, and the nurturing home that the guardians continue to provide for the child and her half-siblings. In turn, those findings fully support the trial court\u2019s conclusion that the best interest of the child will be served by continuing custody with the present guardians.\n8. Trials\u2014 recordation \u2014 tape recordings accidentally destroyed\nRespondent has not been denied due process in a child neglect case even though the tape recordings of the 26 January 2006 hearing were accidentally destroyed, because: (1) it cannot be said that respondent has done all that she can do to reconstruct the transcript; and (2) assuming arguendo that respondent had done all that she could do, it was incumbent upon respondent to demonstrate prejudice, and the use of general allegations is insufficient to show reversible error resulting from the loss of specific portions of testimony.\nAppeal by respondent-mother from order entered 28 February 2006 by Judge R. Les Turner in Wayne County District Court. Heard in the Court of Appeals 25 April 2007.\nE.B. Borden Parker, for Wayne County Department of Social Services, petitioner-appellee.\nJeremy B. Smith, for Guardian ad Litem.\nJeffrey L. Miller, for respondent-mother-appellant." }, "file_name": "0442-01", "first_page_order": 474, "last_page_order": 486 }