Opinion
No. COA12–204.
2012-08-21
In the Matter of I.E.R.
Mercedes O. Chut for petitioner-appellee. Richard Croutharmel for respondent-appellant.
Appeal by respondent mother from order entered 9 December 2011 by Judge K. Michelle Fletcher in Guilford County District Court. Heard in the Court of Appeals 24 July 2012. Mercedes O. Chut for petitioner-appellee. Richard Croutharmel for respondent-appellant.
Smith, James, Rowlett & Cohen, LLP, by Margaret F. Rowlett, for guardian ad litem.
GEER, Judge.
Respondent mother appeals from the trial court's order terminating her parental rights to her daughter, I.E.R. (“Irene”). On appeal, respondent's sole argument is that the trial court abused its discretion in terminating her parental rights when it failed to make any finding under N.C. Gen.Stat. § 7B–1110(a)(6) (2011) discussing Irene's future contact with respondent. Because the statute, as revised, did not require that the trial court make such a finding, we affirm.
The pseudonym “Irene” is used throughout this opinion to protect the minor's privacy and for ease of reading.
Facts
On January 14, 2004, three days after Irene's birth, Guilford County Department of Social Services (“DSS”) took Irene into nonsecure custody due to concerns about respondent mother's cognitive limitations and her ability to care for Irene. DSS filed a juvenile petition alleging that Irene was a dependent juvenile. On 16 January 2004, the trial court adjudicated Irene dependent and ordered respondent mother to comply with a case plan in order to achieve reunification. The plan allowed respondent mother to spend two mornings a week in the home of the foster parent. In May 2005, the trial court ordered physical and legal custody of Irene returned to respondent mother.
On 26 May 2009, DSS received a report that Irene had significant bruising on her left thigh and buttocks area. Irene stated that the bruising was the result of being hit with a belt by respondent mother's boyfriend. A voluntary plan for out-of-home placement was made for Irene, whereby Irene would live with her paternal grandmother in Vance County. Irene's father was also residing at the grandmother's home. On 23 June 2009, Vance County DSS reported that a paternal aunt who also was residing in that home might have sexually abused Irene. On 26 June 2009, Irene was placed in a foster home in Greensboro.
Irene's father relinquished his parental rights.
On 3 August 2009, DSS received a report that respondent mother inappropriately spanked Irene while visiting her in day care. On 31 August 2009, DSS filed a juvenile petition alleging Irene was an abused, neglected, and dependent juvenile. In addition to the above events, the petition alleged that respondent mother engaged in alcohol and marijuana use. Further, the petition asserted that a parenting/psychological evaluation had found respondent mother's knowledge of basic child rearing practices to be limited by her cognitive deficiencies and that when Irene and respondent mother were together, they were subject to becoming emotionally debilitated and behaviorally at risk due to their excessive anxiety and limited coping strategies.
The trial court subsequently adjudicated Irene abused, neglected, and dependent and placed Irene in DSS custody. Respondent mother's case plan required her to remain free of illegal substances; to obtain a substance abuse assessment and comply with its recommendations; to submit to random drug screens; to improve her ability to parent; to obtain a psychiatric evaluation and follow treatment recommendations; to resolve her legal issues; and to visit weekly with Irene.
On 3 November 2010, the trial court conducted a permanency planning hearing and found a recent psychological evaluation raised numerous concerns regarding respondent mother and Irene. The trial court found respondent mother had many mental health issues including a mild mental handicap, depressive disorder, post-traumatic stress disorder, attention deficit hyperactivity disorder, and borderline personality disorder. In addition, respondent mother tested positive for marijuana four times during the summer of 2010. The trial court nonetheless ordered DSS to continue to make reasonable efforts towards the permanent plan of reunification.
On 21 January 2011, the trial court conducted another permanency planning hearing. The trial court found it was not probable that Irene could return home within the next six months and that after 14 months, respondent mother was still allowed only limited supervised visitation. The trial court concluded it would be in Irene's best interest to change the permanent plan to adoption. DSS was ordered to proceed with the filing of a petition to terminate parental rights.
On 22 March 2011, DSS filed a petition seeking termination of respondent mother's parental rights on the basis of abuse, neglect, willfully leaving Irene in foster care for more than 12 months without showing reasonable progress, and dependency. The termination of parental rights hearing was conducted on 13 September, 10 October, and 8 November 2011. The trial court determined that grounds for termination of parental rights existed under N.C. Gen.Stat. §§ 7B–1111(a)(6) (2011) (dependency), 7B–1111(a)(1) (neglect), and 7B–1111(a)(2) (failure to make reasonable progress under the circumstances in correcting conditions that led to removal of juvenile). The trial court then concluded that terminating respondent mother's parental rights was in Irene's best interest. Respondent mother timely appealed to this Court.
Discussion
Under N.C. Gen.Stat. § 7B–1110(a), when determining whether it is in the best interest of the child to terminate parental rights, the trial 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.
(6) Any relevant consideration.
We review the trial court's decision that termination of parental rights is in the best interests of the child for abuse of discretion. In re Anderson, 151 N.C.App. 94, 98, 564 S.E.2d 599, 602 (2002). The trial court is “subject to reversal for abuse of discretion only upon a showing ... that the challenged actions are manifestly unsupported by reason.” Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980).
In the present case, the trial court made the following findings of fact with respect to the best interest determination:
a. The juvenile is 7 years old.
b. It is very likely she will be adopted. Even if she is not adopted by the paternal grandmother due to concerns of the Court, the current foster parents are interested in adopting her. The juvenile is adoptable.
c. There is a bond between the mother and juvenile, though there appear to be some attachment issues present. There is a bond between the juvenile and her paternal grandmother. Having a definite adoptive home identified is not dispositive of whether a parent's rights may be terminated, however. With respect to the paternal grandmother as an adoptive placement, the Court has concerns that the aunt who was accused of sexually touching the juvenile is still in the home on a regular basis, in spite of the fact that the allegations were officially unsubstantiated.
d. There is a bond between the juvenile and her current foster parents. There is a safe, nurturing relationship between the juvenile and this family as demonstrated by affection between the juvenile and her foster parents. And again, even if they do not adopt, that is not dispositive. The juvenile is still adoptable.
e. The mother's CPS history with this juvenile is troubling. The mother has been unable to provide adequate care, supervision and/or discipline for the child as demonstrated by physical injuries received while in care and mom's refusal to accept responsibility for those injuries.
f. The juvenile has Post–Traumatic Stress Disorder. That diagnosis is evidence of exposure to traumatic events in her young life.
g. The juvenile has stated she does not want to live with her mother, and that speaks volumes. The juvenile has expressed fear of her mother and indicated she does not feel protected and safe with the mother.
h. The mother has been provided with 6 parenting courses, in addition to numerous other services. She was discharged from Ringer Center January 20, 2010 for failing to follow the program boundaries and guidelines and for failure to arrive at her meetings and appointments on time, arriving 30–60 minutes late. Mother was often unaware of topic of discussion due to her borderline IQ and she was mostly a distraction to the group. All services that can be utilized have been. There's nothing else that can be offered to mom that can be beneficial or improve her parenting skills.
Respondent mother does not challenge these findings of fact on appeal, and they are, therefore, binding. In re M.D., N.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009). Respondent mother instead argues that the trial court's findings of fact are inadequate.
Specifically, respondent mother contends the trial court failed to make findings of fact with respect to testimony that it was in Irene's best interest to maintain future contact with her mother. Respondent mother argues that the trial court should have considered this testimony as a “relevant consideration” under N.C. Gen.Stat. § 7B–1110(a)(6).
In making this argument, respondent mother relies upon the prior version of N.C. Gen.Stat. § 7B–1110, which provided that the court “shall consider” the enumerated factors, but did not specifically require a written finding as to each factor. However, in In re E.M., 202 N.C.App. 761, 692 S.E.2d 629,cert. denied,364 N.C. 325, 700 S.E.2d 749 (2010), this Court construed the statute as requiring not only that the trial court consider each factor set out in § 7B–1110, but also that it make findings of fact as to all of the factors.
In 2011, however, the General Assembly amended N.C. Gen.Stat. § 7B–1110(a). The current language of § 7B–1110(a) still requires that the trial court consider each factor, but it now only requires written findings as to the criteria that the trial court considers relevant to its best interests determination in the particular case.
Here, the trial court admitted Irene's therapist, Anita Faulkner, as an expert witness and heard testimony that she believed that it would be healthy for respondent mother and Irene to maintain a relationship. The court also heard testimony from a DSS social worker that she would like to see continued contact between the mother and daughter. We cannot, however, conclude that it was manifestly unreasonable for the trial court to determine, after hearing this testimony, that no finding of fact regarding future contact between respondent mother and Irene was necessary to its best interests determination.
Respondent mother's argument hinges on the fact that “[a] permanent plan of TPR and adoption is the only permanent plan that could legally nullify Irene's future ongoing contact with her mother .” The permanent plan had, however, already been established as adoption, and respondent mother did not challenge that order. Moreover, respondent mother points to no permanent plan option for Irene that was a viable alternative to adoption. The court simply determined that termination of parental rights was in Irene's best interests given the permanent plan of adoption and Irene's adoptability.
Nothing in the order precludes future contact between respondent mother and Irene should the trial court determine in future hearings that such visitation would be in Irene's best interests. Nor would adoptive parents be precluded from allowing contact. We cannot, however, conclude that the trial court was required to make findings on future visitation in this order. Since respondent mother makes no further arguments, the order of the trial court is affirmed.
Affirmed. Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).