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In re C.E.L.7/19/2005
nd the later suit; and (3) an identity of the parties or their privies in both suits." Culler v. Hamlett, 148 N.C. App. 389, 392, 559 S.E.2d 192, 194 (2002); see also State ex rel. Utilities Commission v. Thornburg, 325 N.C. 463, 468, 385 S.E.2d 451, 453-54 (1989). When an order "[leaves] the merits of the matter open for future adjudication[,]" there has not been a final judgment on the merits. Whitmire v. Savings & Loan Assoc., 23 N.C. App. 39, 42, 208 S.E.2d248, 250-51 (1974).
In Whitmire, the defendants argued that the order from receivership proceedings was res judicata as to all the claims at controversy in an action for the recovery of loan proceeds. Id. at 41, 208 S.E.2d at 250. However, the order from the receivership proceeds stated that loan proceeds could not be disbursed "'until the controversy involved adjudicated or terminated according to law.'" Id. at 42, 208 S.E.2d at 250. We held that, since the order "did not purport to be an adjudication on the merits but expressly left the merits of the matter open for future adjudication[,]" the receivership order was not res judicata as to the claims for loan proceeds. Id. at 42, 208 S.E.2d at 250-51.
In this case, the 6 January 2004, nunc pro tunc 15 April 2003, permanency planning order in which the trial court deferred to the Chapter 50 action did not purport to be a final adjudication on the merits. Rather, the order stated: " should continue to make reasonable efforts to prevent or eliminate the need for placement of [C.E.L.]." It further ordered that: "[Respondent and R.E.H.] and shall aggressively comply with the conditions of the Family Services Case Plan. Failure on the part of [respondent and R.E.H.] to do so may result in termination of their parental rights." This language indicates that the trial court intended to leave the matter of C.E.L.'s placement for further review and reconsideration. As a result, the order was not a final adjudication on the merits and is not res judicata as to the issues in the 22 March 2004 permanency planning order. Furthermore, we find that giving the previous order res judicata effect would contravene the trial court's duty to consider all relevant evidence, N.C. Gen. Stat. § 7B-907(b) (2003), and "make specific findings as to the best plan of care to achieve a safe, permanent home for the juvenile within a reasonable period of time." N.C. Gen. Stat. § 7B-907(c) (2003); see also In re J.N.S., 165 N.C. App. 536, 538-39, 598 S.E.2d 649, 650-51 (2004). The trial court cannot be bound by a previous permanency planning order when changing needs and circumstances impact future permanency plans. N.C. Gen. Stat. § 7B-907 provides for initial, as well as subsequent, permanency planning hearings. This system thus anticipates the evolving nature of the best interests of and permanent plans for juveniles.
II.
Respondent's last assignment of error contends that the trial court erred in concluding as a matter of law that respondent was unable to provide adequately for C.E.L.'s care and supervision. Conclusions of law are upheld when they are supported by findings of fact. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). We have already determined that the trial court's findings of fact that (1) respondent failed to comply with court orders, (2) respondent failed to make reasonable and timely progress, (3) it was not possible for C.E.L. to return to respondent's home within six months, and (4) it was in C.E.L.'s best interest for her not to return to respondent's home but to live with M.R.O. are supported by competent evidence. These findings of fact support theconclusion of law that respondent was unable to provide adequately for C.E.L.'s care and supervision. T
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