Opinion
No. COA16-124
09-20-2016
IN THE MATTER OF: A.L.H. and E.C.H.
No brief filed on behalf of petitioner-appellee Rockingham County Department of Social Services. David A. Perez for respondent-appellant father. William L. Gardo II for guardian ad litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Rockingham County, Nos. 12 JT 104-05 Appeal by respondent-father from order entered 13 November 2015 by Judge Christopher Freeman in Rockingham County District Court. Heard in the Court of Appeals 24 August 2016. No brief filed on behalf of petitioner-appellee Rockingham County Department of Social Services. David A. Perez for respondent-appellant father. William L. Gardo II for guardian ad litem. BRYANT, Judge.
Where there is no challenge to the trial court's adjudication of grounds to terminate respondent's parental rights, we affirm that portion of the order. However, where relevant dispositional findings of fact are contrary to the trial court's oral findings made at the conclusion of the hearing, we vacate the dispositional portion of the order and remand for entry of a new order on disposition.
The Rockingham County Department of Social Services ("DSS") initiated the underlying matter with the filing of a petition alleging A.L.H. ("Adam") and E.C.H. ("Edward") to be neglected juveniles. By order entered 30 August 2012, the trial court adjudicated Adam and Edward to be neglected juveniles. The trial court entered a dispositional order on 22 October 2012, wherein it continued custody of Adam and Edward with DSS, ordered DSS to make reasonable efforts to reunify Adam and Edward with their parents, and ordered the parents to enter into, and comply with, a services agreement with DSS.
Pseudonyms are used throughout for ease of reading and to protect the identity of the juveniles.
DSS worked toward reunification of Adam and Edward with their father, respondent, for several months, but ultimately filed a petition to terminate parental rights to the juveniles on 11 December 2014. After a hearing on 1 April 2015, the trial court entered an order on 13 November 2015 terminating respondent's parental rights. The court concluded grounds existed to terminate respondent's parental rights in that he neglected the juveniles and willfully left the juveniles in foster care for more than twelve months without showing reasonable progress in correcting the conditions that led to their removal from his custody. See N.C. Gen. Stat. § 7B-1111(a)(1)-(2) (2015). Respondent filed timely notice of appeal from the court's order.
The order also terminated the parental rights of Adam and Edward's mother, but she is not a party to this appeal.
We first note that respondent has not challenged the trial court's adjudication of grounds to terminate his parental rights to the juveniles, and we affirm the adjudication portion of the trial court's order.
On appeal, respondent's sole argument is that the trial court abused its discretion when it concluded it was in the juveniles' best interests to terminate his parental rights. Respondent contends several of the trial court's findings of fact made in support of its best interest determination are unsupported by the evidence, and that the court's conclusion is manifestly unsupported by reason. We agree.
"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." N.C. Gen. Stat. § 7B-1110(a) (2015). In determining if termination of parental rights is in a juvenile's best interests,
the court shall consider the following criteria and make written findings regarding the following that are relevant:
(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.
Id. "The decision to terminate parental rights is vested within the sound discretion of the trial [court] and will not be overturned on appeal absent a showing that the [trial court's] actions were manifestly unsupported by reason." In re J.A.A. & S.A.A., 175 N.C. App. 66, 75, 623 S.E.2d 45, 51 (2005) (citing re V.L.B., 168 N.C. App. 679, 684, 608 S.E.2d 787, 791 (2005)).(6) Any relevant consideration.
Here, the trial court's written findings of fact regarding the dispositional factors of N.C. Gen. Stat. § 7B-1110(a) state as follows:
a. The children have lived in the foster home of [(the "Smiths")] since August 3, 2012. They are well-adjusted in the [Smith] home and have received excellent care there. The children think of the [Smiths] as their parents, and call them "daddy" and "mama."
b. These are young children who would benefit from adoption. [Edward] is five years old and [Adam] is three.
c. It is very likely these children would be adopted if legally available. The [Smiths] have expressed a strong desire to adopt them, and there is no known impediment to the [Smiths] being able to adopt.
d. [Termination of parental rights] will assist in accomplishing the permanent plan because the permanent plan is adoption, and would make adoption of the children possible.
e. There is a bond between [respondent] and the boys. [Respondent] loves his boys very much. He is, however, unable to care for [them]. The boys are comfortable around [respondent] and enjoy spending time with him. They have
resided in their foster home since they were 3 years old and 14 months old. They do not view him in a parental role.
f. There is no bond between the children and [their mother] as a result of her long absence from their lives.
g. The bond between the children and the prospective adoptive parents is very close. They are a family. The children feel safe and loved in the [Smith] home.
h. The children are bonded to their older foster brother ["Larry"], who is an exceptional young man. He is very bright, has excellent manners, is an elite athlete and is good with [Edward] and [Adam]. He is an excellent role model for them.
Respondent argues, however, that several of the trial court's findings of fact are unsupported by the evidence, because the Smiths are not proposed adoptive parents for Adam and Edward. Rather, it is the juvenile's maternal grandparents, R.H. and R.H. (the "Houstons") who are the proposed adoptive parents in this case. Moreover, Larry is not an "older foster brother" to Adam and Edward, but rather is their older half-brother who lives with the Houstons. At the hearing, the social worker testified to the bond between the Houstons and the juveniles, that the Houstons had expressed an interest in adopting the juveniles, and that adoption by the Houstons was "close to 100 percent." No evidence was presented regarding the possibility of adoption of the juveniles by the Smiths.
The trial court's mistake in identifying the Smiths as the prospective adoptive parents of Adam and Edward is too pronounced to be considered a mere clerical error. It is clear from the court's written findings that it heavily weighed the probability of adoption of the juveniles by the Smiths to be in the best interests of the juveniles, and as a result of its mistake, the court's order contains no valid findings regarding the adoptability of the juveniles or their bond with the prospective adoptive parents, the Houstons. Nevertheless, the trial court's oral rendering of its findings on the best interest factors all reference the Houstons as the prospective adoptive parents of Adam and Edward and suggest the reference to the Smiths in the written order may merely be a drafting error. Because the record contains evidence from which the trial court could make proper findings of fact regarding the juveniles' adoptability and their bond with the prospective adoptive parents, we vacate the dispositional portion of the trial court's order and remand for entry of a new order with additional findings of fact. See In re J.L.H., 224 N.C. App. 52, 59-60, 741 S.E.2d 333, 338 (2012).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Judges TYSON and ZACHARY concur.
Report per Rule 30(e).