Opinion
No. COA13–304.
2013-08-6
In the Matter of M.A.W., Minor Child.
Mecklenburg County Department of Social Services, Youth and Family Services, by Senior Associate Attorney Twyla Hollingsworth–Richardson, for petitioner-appellee. David A. Perez for respondent-appellant.
Mecklenburg County Department of Social Services, Youth and Family Services, by Senior Associate Attorney Twyla Hollingsworth–Richardson, for petitioner-appellee. David A. Perez for respondent-appellant.
Winston & Strawn LLP, by Amanda L. Groves, for guardian ad litem-appellee.
GEER, Judge.
Appeal by respondent from order entered 10 December 2012 by Judge Louis A. Trosch in Mecklenburg County District Court. Heard in the Court of Appeals 1 July 2013.
Respondent mother appeals from the trial court's order terminating her parental rights to her child, M.A.W. (“Michael”). Respondent mother does not challenge the trial court's conclusion that grounds exist to terminate her parental rights. On appeal, she argues only that the trial court failed to make sufficient findings of fact under N.C. Gen.Stat. § 7B–1110(a) (2011) to support its conclusion that termination of parental rights was in the best interests of Michael. A review of the trial court's order reveals, however, that the court made sufficient findings as to each of the factors set out in N.C. Gen.Stat. § 7B–1110(a). Accordingly, we affirm the trial court's order.
The pseudonym “Michael” is used throughout this opinion to protect the identity of the juvenile and for ease of reading.
Facts
On 6 August 2009, Mecklenburg County Department of Social Services, Division of Youth and Family Services (“DSS”) received a referral because of concerns regarding respondent parents' inability to properly meet Michael's needs. DSS recommended services to the family and then closed the case.
In 2010, DSS again became involved with the family due to Michael's failing to thrive while in the care of respondent parents, domestic violence issues between the parents, and respondent father's continued issues with alcohol. When the family failed to complete any of DSS' recommended services, DSS sought and obtained non-secure custody of Michael.
Michael was placed in the custody of DSS on 25 May 2011. The trial court adjudicated Michael neglected and dependent on 30 June 2011. Respondent mother, with the aid of her guardian ad litem and her attorney, entered into a Mediated Family Services Agreement. That agreement required, among other things, that respondent mother complete and comply with the recommendations of a Families in Recovery to Stay Together (“F.I.R.S.T.”) assessment; visit Michael; submit to and comply with the recommendations of a parenting capacity evaluation; participate in and complete a parenting education program; follow the recommendations of her psychological assessment; participate in her own and Michael's therapy appointments; and maintain income and housing.
Respondent mother completed her F.I.R.S.T. assessment on 8 July 2011. F.I.R.S.T. recommended mental health treatment and domestic violence counseling. F.I.R.S.T. informed the mental health provider of respondent mother's “need to receive information in simple, repetitive and concrete terms.”
At the first review hearing on 27 September 2011, respondent parents had not made any progress on the Mediated Family Service Agreement and continued to reside in the same home. Respondent father reported that respondent mother had physically assaulted him, and the trial court encouraged respondent mother to engage in domestic violence services. In addition, respondent parents had been inconsistent in their visits with Michael. The guardian ad litem volunteer and caseworker reported that Michael had “regressed in both speech and his ability to walk” while in his foster care placement. Michael was, therefore, moved to the home of a family friend, Katherine T., on 21 September 2011.
Following the second review hearing on 10 January 2012, the trial court found that due to respondent father's past convictions of taking indecent liberties with a child, Michael could not be reunified with him. The trial court cautioned respondent mother that she would need to “seriously consider the status of her relationship with the father, in light of his past convictions and her desire to reunify with the juvenile.” Between September 2011 and January 2012, respondent mother attended 14 out of 24 visits with Michael, and respondent father only attended eight out of 24 possible visits.
The trial court held a permanency planning hearing on 11 April 2012. The trial court found that respondent parents had not made any progress on the Family Services Agreement. With respect to respondent mother, the trial court found that she was not attending domestic violence classes, parenting classes, or therapy; her parenting capacity evaluation had been terminated because she did not attend the scheduled appointments; and her scheduled visits with Michael were ended because she attended only nine out of 20 visits and missed three consecutive scheduled visits. Based on the lack of progress, the trial court found that adoption would be in Michael's best interests and ordered DSS to file a petition to terminate respondent parents' parental rights.
A second permanency planning hearing was held on 8 October 2012. Neither parent attended, and the trial court found that neither parent had made any progress in addressing the issues leading to Michael's out-of-home placement. Michael continued to do well in his placement with Katherine T. and, although there were some concerns about Katherine T.'s ability to adopt Michael, the court found that adoption was still in Michael's best interest.
DSS filed a petition to terminate parental rights on 31 May 2012. Following hearings on 23 and 29 October 2012, the trial court entered an order on 10 December 2012, terminating respondents' parental rights to Michael. The trial court found that grounds existed to terminate respondent parents' rights based on neglect; having willfully left Michael in foster care or placement outside the home for more than 12 months without making reasonable progress in correcting the conditions that led to removal of the juvenile; willful failure to pay a reasonable portion of the cost of Michael's care although physically and financially able to do so; and willful abandonment. The court further concluded that “the goal of the case is adoption and the Court concludes that adoption is in the juvenile['s] best interests for the sake of permanence, safety and protection. The best interests of the above-named juvenile would be served by the termination of parental rights of the respondent parents with respect to [Michael].” Respondent mother timely appealed to this Court. Respondent father is not a party to this appeal.
Discussion
Termination of parental rights involves a two-stage process. In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001). 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.” In re Anderson, 151 N.C.App. 94, 97, 564 S.E.2d 599, 602 (2002). “If the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child.” Id. at 98, 564 S.E.2d at 602. We review the trial court's best interests determination for abuse of discretion. In re Nesbitt, 147 N.C.App. 349, 352, 555 S.E.2d 659, 662 (2001).
Respondent mother's sole argument on appeal is that the trial court, in deciding that termination of parental rights was in Michael's best interest, failed to make the findings of fact required by N.C. Gen.Stat. § 7B–1110(a). N.C. Gen.Stat. § 7B–1110(a) provides:
(a) 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, including hearsay evidence as defined in G.S. 8C–1, Rule 801, 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:
(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 first contends that the trial court failed to make any finding as to “the actual age of the juvenile” and failed to show that the trial court considered the actual age of the juvenile in its best interests analysis. (Emphasis original.) In a conclusion of law, however, the trial court specifically found that Michael was born on 5 August 2009. Although mislabeled as a conclusion of law, we treat it as a finding of fact on appeal. See State v. Dorman, ––– N.C.App. ––––, ––––, 737 S.E.2d 452, 465 (“Ultimately, ‘[a] trial court's mislabeling a determination, however, is inconsequential as the appellate court may simply re-classify the determination and apply the appropriate standard of review.’ “ (quoting State v. Hopper, 205 N.C.App. 175, 179, 695 S.E.2d 801, 805 (2010))), review dismissed as moot,––– N.C. ––––, 743 S.E.2d 205, 2013 WL 3148275, 2013 N.C. LEXIS 558,disc. review denied and appeal dismissed,––– N.C. ––––, 743 S.E.2d 206, 2013 WL 3148335, 2013 N.C. LEXIS 559 (2013). Further, the trial court specifically stated in finding of fact 24 that “the age of the juvenile” was one of the factors that the court considered in deciding that termination of parental rights was in Michael's best interests. The trial court, therefore, adequately complied with N.C. Gen.Stat. § 7B–1110 (a)(1).
With respect to N.C. Gen.Stat. § 7B–1110(a)(2), the likelihood of adoption, respondent mother contends that the trial court's findings that there was a “high likelihood of [Michael] being adopted by his placement provider” and that “the Department is working with the placement provider on some of the issues that may hinder the adoption” were inconsistent with the testimony of Edith Ragsdale, the Permanency Planning Supervisor in the case. Respondent mother points to testimony by Ms. Ragsdale that there were “significant barriers” to Michael being adopted by his placement provider, including “significant health issues” and “some structural barriers to her home that would prevent an adoption from happening.” Ms. Ragsdale acknowledged that the placement provider had not been approved as an adoptive placement for Michael at the time of the hearing. Michael's guardian ad litem also noted those concerns.
Ms. Ragsdale further testified, however, that the plan for Michael remained adoption by his placement provider and that DSS was working to “clear those hurdles” to adoption. The trial court specifically found—in findings not challenged on appeal—that “[t]he placement provider has a large support system and the Department is working with the placement provider on some of the issues that may hinder the adoption.” The trial court heard testimony regarding the concerns and what DSS and the placement provider were doing to address the concerns. The trial court was in the best position to weigh that evidence and determine whether adoption was highly likely. We may not accept respondent mother's invitation that we reweigh the evidence. Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994) (“ ‘[I]t is not for an appellate court to determine de novo the weight and credibility to be given to evidence disclosed by the record on appeal.’ ” (quoting Coble v. Coble, 300 N.C. 708, 712–13, 268 S.E.2d 185, 189 (1980)).
Respondent mother next contends that the trial court failed to make findings as to “[w]hether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile,” as required by N.C. Gen.Stat. § 7B–1110(a)(3). However, the trial court found in its finding of fact 23 that “the goal of the case [was] adoption.” In its finding of fact 24, the trial court further found:
That the juvenile is in the same placement with his sibling and has been in this placement since September 2011. He is thriving and bonded to his placement provider. The Court finds that given the age of the juvenile, the high likelihood of him being adopted by his placement provider, the strong bond with his placement provider, the quality of care the juvenile has received in his placement provider's care, and the likelihood that [sic] both the adoption and providing the child a loving nurturing permanent home with the placement provider if the TPR is granted, the Court finds it is in the best interests of the child to grant the Termination.
These findings indicate that the trial court properly considered whether the termination aided in the permanent plan of adoption.
Respondent mother also argues that the trial court failed to address “[t]he bond between the juvenile and the parent,” as required by N.C. Gen.Stat. § 7B–1110(a)(4). With respect to this factor, the court found that DSS “recommended visitation in order for there to be an ongoing bond between the mother and her child,” and DSS “continued to work closely with mother at visits to help her in bonding with the juvenile.”
The court found, however, that during visits, respondent mother “was physically present but a lot of intervention was required by the DSS social worker and eventually therapist McGill so the mother could meet the juvenile's needs even for a short visit.” Moreover, the court found that “[d]uring the review period from September 2011 to January 2012, the mother attended 14 out of 24 visits with the juvenile. During the review period from January 2012 to April 2012, the mother attended 9 out of 20 visits with the juvenile. Due to the mother's numerous missed visits, her visits were subsequently suspended on or about March 20, 2012. Respondent mother never asked for her visits to be reinstated.” While it is a better practice for the trial court to make a specific finding regarding the parent-child bond, these findings are sufficient to show that the trial court considered that bond in making its best interests determination.
Finally, respondent mother contends that the trial court failed to consider how respondent mother's limitations impacted her ability to complete her case plan. She argues that this factor constitutes “[a]ny relevant consideration” under N.C. Gen.Stat. § 7B–1110(a)(6). Respondent mother points to her case plan and asserts that DSS did not treat her fairly in the development of her case plan and in assessing compliance with that plan because DSS, despite her limitations, expected her to complete her case plan as though she were functioning at a normal level. However, the trial court found that respondent mother's attorney and guardian ad litem assisted in the preparation of her case plan, and respondent mother's “psychological evaluation (where extreme limitations were noted) was used as [a] basis for her treatment goals.”
The trial court also noted the accommodations made in assisting respondent mother in completing her case plan:
16. That the case plan was altered as necessary to meet the mother's needs.... Extra steps were taken to assist the mother in complying with her case plan. Therapist McGill attended visits to show the mother the therapy that was being provided to the juvenile. This was done because of the mother's noted limitations.
Ultimately, the trial court expressed concern that respondent mother's limitations may have been overstated and that her failure to complete her case plan was “not about her inability but about her choices.” These findings indicate the trial court appropriately considered respondent mother's limitations in its determination.
In sum, the trial court made adequate findings regarding each of the factors set forth in N.C. Gen.Stat. § 7B–1110(a). Since respondent mother makes no other argument regarding the trial court's order, we affirm.
Affirmed. Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).