Opinion
No. COA14–1007.
02-17-2015
In the matter of V.A.P.
Mercedes O. Chut for petitioner-appellee Guilford County Department of Health and Human Services. William L. Gardo II for guardian ad litem. Mark Hayes for respondent-appellant.
Mercedes O. Chut for petitioner-appellee Guilford County Department of Health and Human Services.
William L. Gardo II for guardian ad litem.
Mark Hayes for respondent-appellant.
DAVIS, Judge.
S.M. (“Respondent”) appeals from an order terminating his parental rights as to his minor child, V.A.P. (“Violet”). After careful review, we affirm.
Pseudonyms are used throughout this opinion to protect the identity of the minor child and for ease of reading. See N.C.R.App. P. 3.1(b).
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Factual Background
On 23 February 2012, Violet was found by law enforcement officers in New Hanover County begging for money with an unrelated homeless man. Law enforcement officers contacted the New Hanover County Department of Social Services (“NHDSS”), which placed Violet in an emergency shelter.
On 2 March 2012, NHDSS filed a juvenile petition alleging that Violet was neglected and dependent given that (1) Respondent was abusing alcohol; (2) he and Violet were homeless and living in the woods; (3) Violet was not enrolled in school; (4) Violet had been found begging for money with a homeless man; and (5) Violet's mother had a history of substance abuse and was not a viable placement option for Violet. That same day, an order was entered granting NHDSS nonsecure custody of Violet.
On 12 April 2012, the petition was heard by Judge Melinda H. Crouch in New Hanover County District Court. On 9 May 2012, Judge Crouch entered a written order adjudicating Violet as neglected and dependent. Judge Crouch adopted a case plan for Respondent proposed by NHDSS requiring Respondent to (1) submit to random drug screens; (2) complete a substance abuse assessment; (3) complete parenting classes; and (4) secure and maintain financial stability and housing. Pursuant to the order, Violet was placed in the home of her maternal cousin in Guilford County, North Carolina, and her case was transferred to Guilford County District Court.
Shortly thereafter, on 19 April 2012, Respondent sustained a serious brain injury during a car accident. As a result of the accident, Respondent was rendered incapable of completing the requirements of his case plan. Respondent's mother was appointed as guardian of the person for him.
On 8 June 2012, the Guilford County Department of Health and Human Services (“GDHHS”) transferred Violet to a placement with her paternal great aunt and uncle, B.C. and J.C., with whom she currently lives. On 1 November 2012, a permanency planning review hearing was held by Judge Betty J. Brown in Guilford County District Court. On 27 November 2012, Judge Brown entered a written order changing Violet's permanent plan to adoption with a concurrent plan of guardianship by B.C. and J.C.
On 3 April 2013, Violet's mother died. The cause of death was shown to be fatal levels of heroin, cocaine, and oxycodone present in her system.
On 21 November 2013, GDHHS filed a petition to terminate Respondent's parental rights based on Violet's status as a dependent juvenile. A termination of parental rights adjudicatory and disposition hearing was held before the Honorable Angela Foster in Guilford County District Court on 10 March 2014. On 8 July 2014, Judge Foster entered a written order concluding that termination of Respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(6) was appropriate on the ground that Respondent was incapable of providing for the proper care and supervision of Violet such that she was a dependent juvenile. Respondent filed timely notice of appeal from the trial court's order.
Analysis
“A termination of parental rights proceeding is held in two phases, the adjudication stage and the disposition stage.” In re D.R.F., 204 N.C.App. 138, 141, 693 S.E.2d 235, 238, disc.review denied, 364 N.C. 616, 705 S.E.2d 358 (2010). At the adjudicatory stage, “the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen.Stat. § 7B–1111 exists. Findings of fact supported by competent evidence are binding on appeal even if evidence has been presented contradicting those findings.” In re L.H., 210 N.C.App. 355, 362, 708 S.E.2d 191, 196 (2011) (internal citations and quotation marks omitted).
Once a trial court has concluded during the adjudication phase that grounds exist for termination of parental rights, it must decide in the disposition phase whether termination is in the best interests of the child. The trial court's decision as to the best interests of the child is discretionary. 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.
D.R.F., 204 N.C.App. at 141, 693 S.E.2d at 238 (internal citations and quotation marks omitted).
I. Adjudication Phase
Respondent's first argument on appeal is that the trial court erred in determining that grounds existed for the termination of his parental rights because Violet was not a dependent juvenile under N.C. Gen.Stat. § 7B–1111(a)(6). Specifically, Respondent asserts that because his mother, J.O., suggested that Violet be placed with B.C. and J.C., an alternative child care arrangement for Violet was provided by Respondent within the meaning of the statute. We disagree.
N.C. Gen.Stat. § 7B–1111(a)(6) provides, in pertinent part, that:
(a) The court may terminate the parental rights upon a finding of one or more of the following:
....
(6) That the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B–101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.
N.C. Gen.Stat. § 7B–1111(a)(6) (2013).
In its 8 July 2014 order, the trial court made the following finding of fact on the issue of whether Respondent lacked an appropriate alternative child care arrangement:
18. [Respondent] does not have an appropriate alternative child care arrangement. [Respondent] is unable to remember where [Violet] is residing and at times thinks she is with her mother. Due to his cognitive impairment he is unable to propose an alternative arrangement. [Violet] is placed with her Paternal Great Aunt and Uncle. This placement was suggested by the paternal grandparents.
Respondent does not dispute that he is unable to care for Violet and that his inability to care for her is likely to continue for the foreseeable future. Instead, he contends that the trial court erroneously found in finding of fact 18 that he lacked an appropriate alternative child care arrangement. Respondent argues that—for purposes of assessing dependency under N.C. Gen.Stat. § 7B–1111(a)(6) —“[a] parent does not lack an alternative [child care] arrangement if familysteps in to provide that arrangement .”
However, this Court has “consistently held that in order for a parent to have an appropriate alternative child care arrangement, the parentmust have taken some action to identify viable alternatives.” L.H., 210 N.C.App. at 364, 708 S.E.2d at 197 (emphasis added). In L.H.,the trial court terminated the parental rights of the respondent-father as to his minor child based on N.C. Gen.Stat. § 7B–1111(a)(6). On appeal, the respondent-father did not contest that he was incapable of caring for his minor child but instead argued that the trial court had erred in determining that he lacked an appropriate alternative child care arrangement. The respondent-father contended that because his child was placed with the child's maternal grandmother, an alternative child care arrangement existed and that it was irrelevant that he himself had not suggested or actively pursued this placement. Id.at 363, 708 S.E.2d at 197.
In rejecting the respondent-father's argument, we held that
the fact that [the minor child] was placed with his maternal grandmother cannot mean, without anything more, that respondent father had an alternative care arrangement. If this were the case, the [second] requirement [of N.C. Gen.Stat. § 7B–1111(a)(6) ] would be meaningless because, in the words of the guardian ad litem, “our courts will always do their best to ensure that someone” cares for children. Having an appropriate alternative childcare arrangement means that the parent himself must take some stepsto suggest a childcare arrangement—it is not enough that the parent merely goes along with a plan created by DSS.
Id.at 365–66, 708 S.E.2d at 198 (emphasis added); see also In re J.D.L., 199 N.C.App. 182, 189, 681 S.E.2d 485, 490 (2009) (“A conclusion that a juvenile is dependent may be supported by evidence that the parent is unable to care for the child or to suggest an appropriate alternative placement for the child.”); In re J.L., 183 N.C.App. 126, 130, 643 S.E.2d 604, 606 (2007) ( “[T]o adjudicate [a minor child] as dependent, the trial court was required to find that respondent, [the minor child's] father, was either unable to care for [the minor child] himself, or was unable to secure an alternative child care arrangement”).
Therefore, this Court has consistently required some proactive action on the part of the parent himself regarding this prong of N.C. Gen.Stat. § 7B–1111(a)(6). For this reason, because there is no evidence of Respondent himself actually playing a role in Violet's placement, his argument fails.
In a related argument, Respondent asserts that because his mother was designated as his guardian of the person, her suggestion of B.C. and J.C. as a placement option for Violet should be imputed to him. In essence, he contends that his mother was speaking on his behalf as his proxy when she suggested this alternative child care arrangement.
The powers and duties of a guardian of the person are governed by N.C. Gen.Stat. § 35A–1241, which states, in pertinent part, as follows:
(a) ... [A] guardian of the person has the following powers and duties:
(1) The guardian of the person is entitled to custody of the person of the guardian's ward and shall make provision for the ward's care, comfort, and maintenance, and shall, as appropriate to the ward's needs, arrange for the ward's training, education, employment, rehabilitation or habilitation. The guardian of the person shall take reasonable care of the ward's clothing, furniture, vehicles, and other personal effects that are with the ward.
(2) The guardian of the person may establish the ward's place of abode within or without this State....
(3) The guardian of the person may give any consent or approval that may be necessary to enable the ward to receive medical, legal, psychological, or other professional care, counsel, treatment, or service[.] ... The guardian of the person may give any other consent or approval on the ward's behalf that may be required or in the ward's best interest.
N.C. Gen.Stat. § 35A–1241(a)(1)–(3) (2013).
Nowhere in these statutorily conferred powers and duties is there any authority vested in the guardian of the person to make decisions on the ward's behalf concerning the welfare of the ward's minor children (such as securing alternative child care arrangements for them). A guardian of the person's role is instead limited to exercising his or her authority in the best interests of the ward in connection with the ward's care, comfort, and maintenance. Consequently, in the present case, Respondent's mother had no authority to serve as Respondent's proxy with regard to Violet's placement. Therefore, the trial court did not err in determining that termination of Respondent's parental rights pursuant to N.C. Gen.Stat. § 7B1111(a)(6) was appropriate.
II. Disposition Phase
Respondent's final argument on appeal is that the trial court abused its discretion in concluding that termination of his parental rights was in Violet's best interests. He asserts that the court's decision “introduced significant instability and impermanence” into Violet's existing custody arrangement. Respondent further contends that the trial court's decision to terminate his parental rights places his relationship with Violet at risk without providing any countervailing benefit to her.
At the disposition stage of a termination of parental rights proceeding, the trial court “determine[s] whether terminating the parent's rights is in the juvenile's best interest.” N.C. Gen.Stat. § 7B–1110(a) (2013). When determining whether it is in the best interests of a child to have parental rights terminated, the trial court must consider:
(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.
N.C. Gen.Stat. § 7B–1110(a).
The trial court made the following pertinent findings of fact in its 8 July 2014 order:
29. That with respect to what is in the best interest of the juvenile, the Court finds the following facts:
a. The juvenile [Violet] is 13 years old of a young and adoptable age.
b. The permanent plan for the juvenile is adoption and terminating [Respondent's] parental rights is necessary in order for the juvenile to be adopted.
c. There is a great likelihood of adoption as the current foster parents have expressed a desire to adopt the juvenile once she legally [sic] free for adoption.
d. The proposed adoptive parents are the juvenile's great Aunt and Uncle.
e. There is a bond between [Violet] and [Respondent]. The juvenile speaks with [Respondent] on a regular basis and has visitation with him.
f. The bond between the juvenile and the foster parents is strong. [Violet] has expressed a desire to be adopted by her great Aunt and Uncle.
Respondent does not challenge any of the specific findings made by the trial court but instead simply argues that its conclusion that adoption was in Violet's best interests was erroneous. “If unchallenged on appeal, findings of fact are deemed supported by competent evidence and are binding upon this Court.” In re A.R.H .B.,186 N.C.App. 211, 214, 651 S.E.2d 247, 251 (2007) (citation and internal quotation marks omitted), appeal dismissed,362 N.C. 235, 659 S.E.2d 433 (2008).
We find no abuse of discretion by the trial court. The court's written findings reflect its consideration of each of the above statutory factors, including the “bond between [Violet] and [Respondent]” and the fact that she “speaks with [Respondent] on a regular basis and has visitation with him.” However, the trial court also heard evidence and made findings regarding the “great likelihood” of Violet's adoption by B.C. and J.C., the “strong” bond between them, and Violet's own “desire to be adopted by her great Aunt and Uncle.” Based on consultations with Violet, her therapist, and her caretakers, Violet's guardian ad litemadvised the trial court that the permanence provided by adoption would give her “closure” and foreclose “any open questions about where [she] belong[s].” By contrast, the court heard no evidence suggesting that adoption would damage Violet's relationship with Respondent.
Thus, we conclude that Respondent has failed to show that the trial court abused its discretion. Accordingly, the trial court's order is affirmed.
Conclusion
For the reasons stated above, the order of the trial court is affirmed.
AFFIRMED.
Chief Judge McGEE and Judge STEELMAN concur.
Report per Rule 30(e).
Opinion
Appeal by respondent from order entered 8 July 2014 by Judge Angela Foster in Guilford County District Court. Heard in the Court of Appeals 26 January 2015.