Opinion
No. COA15-975
04-05-2016
IN THE MATTER OF: S.N. and C.W.
Senior Assistant County Attorney Bettyna Belly Abney, for Durham County Department of Social Services, petitioner-appellee. Parker Poe Adams & Bernstein, LLP, by J. Caleb Thomas, for guardian ad litem. Jeffrey William Gillette for respondent-mother. Mark L. Hayes for respondent-father.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Durham County, Nos. 11 JT 351-52 Appeal by respondents from orders entered 26 February 2013 by Judge Nancy E. Gordon and 12 June 2015 by Judge William A. Marsh, III in Durham County District Court. Heard in the Court of Appeals 14 March 2016. Senior Assistant County Attorney Bettyna Belly Abney, for Durham County Department of Social Services, petitioner-appellee. Parker Poe Adams & Bernstein, LLP, by J. Caleb Thomas, for guardian ad litem. Jeffrey William Gillette for respondent-mother. Mark L. Hayes for respondent-father. DAVIS, Judge.
L.D. ("Respondent-mother") appeals from the trial court's (1) permanency planning order determining that the permanent plan for her daughters S.N. ("Serena") and C.W. ("Chelsea") be changed from reunification to adoption with a concurrent plan of guardianship; and (2) order terminating her parental rights to the children. R.M. ("Respondent-father"), the biological father of Serena, appeals the trial court's order terminating his parental rights to Serena. After careful review, we affirm.
Pseudonyms are used throughout the opinion to protect the identities of the minor children and for ease of reading. N.C.R. App. P. 3.1(b).
The parental rights of Chelsea's father were also terminated. However, he is not a party to the present appeal.
Factual Background
On 10 November 2011, Respondent-mother left her four-year-old daughter Serena and her one-year-old daughter Chelsea with her grandmother. On 15 November 2011, the Durham County Department of Social Services ("DSS") received a Child Protective Service report that Respondent-mother had abandoned her children. After unsuccessfully attempting to locate Serena and Chelsea at Respondent-mother's grandmother's and great aunt's respective addresses on 17-18 November 2011, DSS eventually discovered Serena and Chelsea at the home of M.P., the "possible paternal aunt of [Chelsea]" on 28 November 2011.
M.P. informed a DSS social worker that Respondent-mother had arrived at her home that morning with Serena and Chelsea and had left the children in her care, telling M.P. that she would return to pick them up around 3:30 p.m. that afternoon. However, Respondent-mother did not return that day. M.P. informed the social worker that when Respondent-mother had dropped the children off her "clothing [was] soiled with defecation and with a horrible body odor." The social worker observed that the "[c]hildren's clothing was heavily soiled; their hair was dirty and matted/unkempt; and they were not appropriately dressed for the cold weather."
When Respondent-mother did not return to pick up Serena and Chelsea, DSS filed a juvenile petition in Durham County District Court on 16 December 2011 alleging that the children were neglected and dependent juveniles. That same day, the trial court entered an order granting nonsecure custody of Serena and Chelsea to DSS.
On 10 February 2012, a hearing was held on DSS' petition before the Honorable Nancy Gordon in Durham County District Court. That same day, Judge Gordon entered an order adjudicating Serena and Chelsea as neglected and dependent juveniles. The order further required Respondent-mother to "complete psychological testing for cognitive testing and M/H diagnosis and comply with recommended treatment; complete a parenting class; obtain and maintain stable housing; and, obtain and maintain stable employment."
On 26 February 2013, the trial court adopted a permanent plan of adoption with a concurrent plan of guardianship at a permanency planning hearing and ordered the cessation of reunification efforts. In reaching this conclusion, the trial court found that Respondent-mother (1) "ha[d] not begun the parenting class"; (2) reside[d] with a man, J.C., who allegedly molested Serena; and (3) had maintained only "sporadic contact with DSS." In a subsequent permanency planning review order entered on 6 November 2013, the trial court made the following additional findings of fact:
18. It is not possible to return [Serena] and [Chelsea] home immediately or in the next six months because [Respondent-mother's] mental health needs are severe and require intensive services to support her daily living. In addition, [Respondent-mother] has not demonstrated that she is able to meet her children's basic needs. Further, [Respondent-mother] continues to maintain a relationship with [J.C.] despite allegations of sexual abuse towards her daughter, [Serena].
19. It is not possible for custody to be given to [Serena's] father, [Respondent-father], immediately or in the next six months because of his mental health status and unstable housing. [Respondent-father] continues to report he is homeless.
On 10 June 2014, DSS filed a motion/petition for termination of the parental rights of Respondent-mother, Respondent-father, and Chelsea's father. A termination of parental rights hearing was held before the Honorable William A. Marsh, III in Durham County District Court on 29 January 2015. At the conclusion of the hearing, the trial court found the existence of grounds to terminate the parental rights of Respondent-mother and Respondent-father pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (6). The court then determined that the termination of Respondent-mother's and Respondent father's parental rights was in the best interests of Serena and Chelsea and ordered DSS to proceed with adoption proceedings. Respondent-mother filed notice of appeal on 23 June 2015 from the permanency planning order and the termination of parental rights order. Respondent-father filed notice of appeal of the termination of parental rights order on 9 June 2015.
Analysis
I. Permanency Planning Order
In her first argument on appeal, Respondent-mother asserts that the trial court erred in changing the permanent plan from reunification to adoption with a concurrent plan of guardianship. Specifically, she contends that the trial court's permanency planning order failed to make the findings required under N.C. Gen. Stat. § 7B-906.1(e). We disagree.
"This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court's conclusions, and whether the trial court abused its discretion with respect to disposition." In re C.M., 183 N.C. App. 207, 213, 644 S.E.2d 588, 594 (2007).
At the outset, we note that N.C. Gen. Stat. § 7B-906.1(e) did not become effective until 1 October 2013, several months after the permanency planning order was entered on 26 February 2013. 2013 N.C. Sess. Laws 305, 317, 328, ch. 129, §§ 26, 41. The statute previously in effect was N.C. Gen. Stat. § 7B-907(b), which provided, in pertinent part, as follows:
At the conclusion of the [permanency plan] hearing, if the juvenile is not returned home, the court shall consider the following criteria and make written findings regarding those that are relevant:
N.C. Gen. Stat. § 7B-907(b) (2011).(1) Whether it is possible for the juvenile to be returned home immediately or within the next six months, and if not, why it is not in the juvenile's best interests to return home;
(2) Where the juvenile's return home is unlikely within six months, whether legal guardianship or custody with a relative or some other suitable person should be established, and if so, the rights and responsibilities which should remain with the parents;
(3) Where the juvenile's return home is unlikely within six months, whether adoption should be pursued and if so, any barriers to the juvenile's adoption;
(4) Where the juvenile's return home is unlikely within six months, whether the juvenile should remain in the current placement or be placed in another permanent living arrangement and why;
(5) Whether the county department of social services has since the initial permanency plan hearing made reasonable efforts to implement the permanent plan for the juvenile;
(6) Any other criteria the court deems necessary.
In the present case, Respondent-mother asserts the trial court failed to make findings of fact considering whether legal guardianship or placement with a relative or other suitable person was an option. She also contends that the trial court's order "ignored the fact that DSS did not make reasonable efforts" to help her reunite with her children, and that the trial court failed to make findings as to why adoption was in the best interests of the children.
It is well settled that "[w]hile it is true that the court is not expressly required to make every finding listed [in N.C. Gen. Stat. § 7B-907(b)], it must still make those findings that are relevant to the permanency plans being developed for the children." In re J.S., 165 N.C. App. 509, 512, 598 S.E.2d 658, 660-61 (2004) (emphasis added). A factor is relevant for fact-finding purposes if there is conflicting evidence concerning the factor such that it is placed in issue. In re H.D., ___ N.C. App. ___, ___, 768 S.E.2d 860, 866 (2015). Moreover, findings of fact in a cease reunification order are adequate if they embrace the statutory factors even without using the exact statutory language. In re L.M.T., 367 N.C. 165, 168, 752 S.E.2d 453, 455 (2013). In addition, findings in a cease reunification order may be considered together with findings in a subsequent termination of parental rights order, and incomplete findings of fact in the former may be cured by findings of fact contained in the latter. Id. at 170, 752 S.E.2d at 457.
Here, we believe that the trial court made adequate findings of fact in support of its conclusions. The evidence was uncontroverted that Respondent-mother identified only one person — an aunt — as a possible relative placement and that the aunt's criminal history prevented her from serving in this capacity. The trial court further found that it was not possible for custody of the children to be given to their biological fathers.
The trial court's findings also demonstrate that Respondent-mother has difficulty caring for herself, that she has severe mental health needs that will require professional care indefinitely to support her activities of daily living, that she has not demonstrated that she is able to meet her children's basic needs, and that she missed several visits with the children. The court's findings further established that Respondent-mother was still living with her boyfriend who had allegedly molested Serena in the past. Finally, with regard to Respondent-mother's argument that DSS did not help to facilitate reunification with her children, finding of fact 17 of the permanency planning order listed the efforts DSS made to prevent or eliminate the need for the children to remain outside her home.
Therefore, the permanency planning order mandating the cessation of reunification efforts along with a concurrent plan of guardianship was based on competent evidence that supported the trial court's findings of fact, which, in turn, supported its conclusions of law. Consequently, we affirm the permanency planning order.
II. Termination of Parental Rights Order
A proceeding to terminate parental rights consists of two stages, and different standards of analysis apply to each stage. In re D.R.B., 182 N.C. App. 733, 735, 643 S.E.2d 77, 79 (2007). In the first phase, the trial court "examines the evidence and determines whether sufficient grounds exist under N.C. Gen. Stat. § 7B-1111 to warrant termination of parental rights." In re T.D.P., 164 N.C. App. 287, 288, 595 S.E.2d 735, 736 (2004), aff'd per curiam, 359 N.C. 405, 610 S.E.2d 199 (2005). If the court determines that one or more grounds for terminating a parent's rights exists, it then proceeds to the disposition phase and makes a discretionary determination whether terminating the parent's rights is in the juvenile's best interest. N.C. Gen. Stat. § 7B-1110(a) (2015).
A. Adjudication Phase
Respondent-mother does not challenge the adjudication portion of the termination of parental rights order. Therefore, we consider only the arguments of Respondent-father as to this portion of the trial court's order.
First, Respondent-father contends the court erred by finding grounds to terminate his parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) because the trial court failed to make findings that he neglected Serena and that he is likely to neglect her in the future. Second, he asserts that the court erroneously held that grounds existed to terminate his parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) because the evidence showed that he had made his best efforts to correct the conditions that led to the placement of Serena in foster care. Finally, he argues that the trial court erred in finding grounds to terminate his parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(6) because there was no evidentiary basis for a finding that he was incapable of providing for the proper care or supervision of Serena.
Our review on appeal is limited to a determination of whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether its findings of fact support its conclusions of law. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6, disc. review denied, 358 N.C. 543, 599 S.E.2d 42 (2004). The conclusions of law are reviewable de novo. In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
In order to terminate parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), a court must conclude, based upon clear and convincing evidence, that the parent (1) willfully left the child in placement outside the home for more than twelve months, and (2) as of the time of the termination hearing, failed to make reasonable progress under the circumstances to correct the conditions that led to the child's removal. In re O.C., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396, disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005).
Respondent-father cites to evidence tending to establish that he (1) called his social worker every day to report on his progress; (2) visited Serena every time he had the opportunity to do so with only one exception; (3) has been seeking employment on a daily basis; (4) has attended every court hearing; and (5) has submitted an application for Section 8 housing.
The fact, however, that a parent has made some efforts to regain custody of the child does not preclude a court from concluding that the parent has willfully left the child in foster care without showing to the satisfaction of the court that reasonable progress has been made in correcting the conditions that caused the removal of the child. In re Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d 393, 398 (1996). Moreover, a finding of willfulness does not require a showing of parental fault, and may be made when the parent has been unable to take care of the child and has not demonstrated the ability to care for the child despite efforts made for that purpose. In re Bishop, 92 N.C. App. 662, 668-69, 375 S.E.2d 676, 680-81 (1989).
The court's findings of fact show that Respondent-father has a history of homelessness, which has continued through the date of the termination hearing. He has not obtained housing because he refuses to accept any housing that is not large enough to accommodate him and Serena even though such housing is not within his budget. He is unwilling to stay in a rooming house, and at the time of the hearing, he had not saved any money to obtain housing for himself and his child. He also has not purchased any items for the child. Respondent-father also has a history of alcohol abuse, blood clots, and mental health issues that required a higher level of care at the time of the termination hearing.
A parent's "prolonged inability to improve [his] situation, despite some efforts in that direction, will support a finding of willfulness" necessary to terminate parental rights on the ground the parent willfully left the child in foster care for more than twelve months without showing reasonable progress had been made in correcting the conditions that led to the removal of the child. In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93 (2004). Here, after Serena had been in foster care for more than three years Respondent-father was still unable to (1) obtain employment; (2) provide her — or himself — with a safe, secure home; or (3) otherwise provide adequate care for her. We therefore hold that sufficient grounds existed for the termination of Respondent-father's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). Having determined that one ground for termination is conclusively established, we need not address the other grounds found by the trial court to support termination. In re P.L.P., 173 N.C. App. 1, 9, 618 S.E.2d 241, 246 (2005), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006).
B. Disposition Phase
We next address the trial court's determination at the disposition phase that termination of the parental rights of Respondent-mother and Respondent-father was in the best interests of the juveniles. "The trial court's decision at the dispositional phase of a termination of parental rights proceeding is a discretionary determination that will not be disturbed on appeal unless it is so arbitrary that it could not have been the product of reasoned decision-making." In re M.D., 200 N.C. App. 35, 44, 682 S.E.2d 780, 786 (2009). Respondent-mother and Respondent-father jointly contend that the court abused its discretion by determining that termination of their parental rights was in the best interests of the children. We disagree.
N.C. Gen. Stat. § 7B-1110(a) states, in pertinent part, the following:
After an adjudication that one or more grounds for terminating a parent's rights exist, the court shall determine whether terminating the parent's rights is in the juvenile's best interest. The court may consider any evidence . . . that the court finds to be relevant, reliable, and necessary to determine the best interests of the juvenile. In each case, the court shall consider the following criteria and make written findings regarding the following that are relevant:
N.C. Gen. Stat. § 7B-1110(a).(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
Respondent-mother and Respondent-father argue that the court gave too little weight to the bond between them and the children and too much weight to the affluence of the adoptive parents and their ability to provide the children with material things that Respondents could not afford. They also submit that the trial court gave insufficient consideration to guardianship as a better alternative for the children.
As N.C. Gen. Stat. § 7B-1110(a) makes clear, the bond between the parent and the child is just one factor the court is to consider in determining whether the termination of parental rights is in the best interests of the child. We have previously held that a trial court does not abuse its discretion by giving greater weight to other factors than to the parental bond. See In re N.A.L., 193 N.C. App. 114, 121-22, 666 S.E.2d 768, 773 (2008).
In the present case, the findings of fact establish that although Serena expresses love and concern for both parents, she has minimal interaction with Respondent-mother. Chelsea does not have any bond with Respondent-mother or her father, but she does have a "significant emotional attachment" to her sister Serena, and her foster parents are able "to calm her and reassure her when [Serena] is separated from her." Neither Respondent-father nor Respondent-mother appeared for a "face time call" with the children on 1 January 2015. After having been in five different placements, the children "have finally found happiness and a sense of belonging" in their current foster home. Chelsea has "a special bond" with her foster mother, who "can understand [Chelsea] when no one else can." The girls refer to the foster parents, both of whom are teachers, as "Mommy" and "Daddy" and their "forever family."
The court also found that adoption is the best plan for the children and "is necessary in order to promote the healthy and orderly physical and emotional well-being for the children . . . ." Over thirty prospective placements were explored by DSS and "many were not a match due to the children's unique interest[s] and compatibility." Placement with relatives was also explored "but none were found to be appropriate to care for and meet the needs of the children." The current foster parents, who have been providing care for the children since April 2014 and in whose care the girls have been doing well, desire to adopt the two girls.
In light of these findings, we conclude that Respondent-mother's and Respondent-father's arguments do not "provide any basis for an appellate reversal of the trial court's order, since it is supported by adequate findings of fact and conclusions of law and is the product of a reasoned decision-making process." In re M.D., 200 N.C. App. at 46, 682 S.E.2d at 787. We therefore hold that the court did not abuse its discretion by determining that termination of parental rights was in the best interests of the juveniles.
Conclusion
For the reasons stated above, we affirm the trial court's permanency planning order and termination of parental rights order.
AFFIRMED.
Judges HUNTER, JR. and ZACHARY concur.
Report per Rule 30(e).