Opinion
No. COA12–1387.
2013-06-4
In the Matter of D.L.B. and B.N.B.
Mercedes O. Chut for petitioner-appellee Guilford County Department of Social Services. Leslie C. Rawls for respondent-appellant mother.
Appeal by respondent-mother from order entered 6 August 2012 by Judge Betty J. Brown in Guilford County District Court. Heard in the Court of Appeals 15 May 2013. Mercedes O. Chut for petitioner-appellee Guilford County Department of Social Services. Leslie C. Rawls for respondent-appellant mother.
Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett, for guardian ad litem.
ELMORE, Judge.
Tracy Reid (respondent) appeals from the district court's order terminating her parental rights to the juveniles. After careful review, we affirm.
In February 2005, the Guilford County Department of Social Services (DSS) filed a juvenile petition alleging that two-month-old D.L.B. (Dennis) and two-year-old B.N.B. (Brenda) were neglected juveniles. DSS obtained nonsecure custody of the juveniles at the same time. In an order entered on 27 June 2005, the trial court adjudicated the juveniles neglected based on the consent of the parties. The trial court found that DSS had received a report in July 2004 and had been working with the family. The trial court also found that the children nevertheless continued to be exposed to an injurious environment due to respondent's mental health issues, history of substance abuse, unstable housing, and domestic violence with the father. The trial court ordered the juveniles to remain in DSS custody.
Pseudonyms are used to protect the identity of the juveniles and for ease of reading. Additional names have been replaced with pseudonyms elsewhere in this opinion to again protect the identity of the juveniles and the parties involved.
The petition also alleged that an older sibling was neglected; however, she is not the subject of the instant termination of parental rights action.
By order entered on 26 January 2009, the trial court terminated the father's parental rights to Dennis and Brenda. On 7 August 2009, respondent signed a relinquishment of parental rights as to Dennis and Brenda. The relinquishment, however, was conditioned on the children being placed with the Greens, an adoptive foster placement. Dennis had been placed with the Greens since he was removed from his parents' custody, and Brenda had been placed with the Greens since November 2007. In August 2010, DSS received a Child Protective Services (CPS) report alleging physical abuse by the Greens. The CPS report was substantiated and the juveniles were removed from the Greens' home on 2 September 2010. Thereafter, respondent was permitted to revoke her relinquishment, and DSS resumed reunification efforts.
On 4 January 2012, DSS filed a motion to terminate respondent's parental rights to Dennis and Brenda, alleging the following grounds for termination: (1) neglect, (2) failure to make reasonable progress, and (3) dependency. SeeN.C. Gen.Stat. § 7B–1111 (a)(1), (2), (6) (2012).
The trial court conducted a termination of parental rights hearing on 9 July 2012. In an order entered on 6 August 2012, the trial court concluded that “[t]he parental rights of [respondent-mother] should be terminated pursuant to N.C.G.S. § 7B–1111(a)(6) in that the parent is incapable of providing for the proper care of the juveniles, such that the juveniles are dependent juveniles within the meaning of N.C.G.S. § 7B–101, and that there is a reasonable probability that such incapability will continue for the foreseeable future.” The trial court also concluded that it was in the juveniles' best interest to terminate respondent's parental rights. The trial court concluded that the evidence was insufficient to establish the other two grounds. Respondent appeals.
I.
In her first argument on appeal, respondent challenges the trial court's conclusion that grounds exist to terminate her parental rights. Pursuant to N.C. Gen.Stat. § 7B–1111(a) (2012), a trial court may terminate parental rights upon a finding of one of the ten enumerated grounds. We review the trial court's order to determine “whether the trial court's findings of fact were based on clear, cogent, and convincing evidence, and whether those findings of fact support a conclusion that parental termination should occur.” In re Oghenekevebe, 123 N.C.App. 434, 435–36, 473 S.E.2d 393, 395 (1996) (citation omitted).
The trial court concluded that termination of respondent's parental rights was justified based on the ground of dependency, which is defined as follows:
[T]he 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) (2012). In determining whether a juvenile is dependent, the trial court is required to “address both[:] (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.” In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005).
The following findings of fact address this ground for termination:
12. Both children are special needs children and require counseling, medication management, and parenting which can effectively address children with behavioral and emotional difficulties.
13. [Respondent] currently resides with her parents [the “Rays”], in Forsyth County. She is unemployed and receives SSI Disability income. The mother's seventeen year old daughter and four year old daughter also reside in the home. The mother's seventeen year old daughter attends Salem College. The mother's four year old daughter [“Janice”], was placed in the home pursuant to a safety plan drawn up by Forsyth County DSS. The plan specifically states that Janice can be placed with the mother only so long as [respondent] resides in the home of her parents....
14. [The Rays] have indicated that they are willing to have the juveniles [Brenda] and [Dennis] also placed in their home. [Mr. Ray] is 71 years of age and [Mrs. Ray] is 67 years of age. An updated home study was completed on their home by the Forsyth County [DSS] on July 5, 2011. The home study was denied by Forsyth County due to the age, health, and insufficient financial resources of the maternal grandparents, the juveniles' special needs, and the juveniles' behavioral issues.
15. [Respondent] completed a psychological and parenting capacity evaluation with Dr. Bert Bennett, Ph.D. of Carolina Piedmont Psychological Associates on June 1, 2011. Dr. Bennett found that the mother presents as mildly intense and hypomanic, a worrier and obsessive in her thinking; functioning intellectually in the low average range of intelligence; and having a long history of bipolar disorder and depression with multiple suicide and inpatient hospitalizations, the last of which was in 2007. Dr. Bennett found that although the mother reported a stable living arrangement with her parents, due to her intellectual capacity and mental health issues she does not have the ability to parent the juveniles without full-time assistance from another caregiver.
16. [Respondent] entered into a service agreement with [DSS] on December 1, 2010. Although the mother has diligently worked on her service agreement and is currently in full compliance with the provisions of that agreement to the extent that she is capable, her limited intellectual functioning and mental health issues make her unable to parent the juveniles without full-time parenting assistance. [Respondent-mother] has no alternative care arrangement for these children other than her parents' home, as she is unable to maintain her own household and requires full time assistance to care for these children.
17. The parent of these juveniles has not demonstrated an ability to parent the juveniles and provide a safe and secure environment for the juveniles. She does not have an appropriate alternative child care arrangement.
18. The parental rights of [respondent] should be terminated pursuant to N.C.G.S. § 7B–1111(a)(6) in that the parent is incapable of providing for the proper [ ] care of the juveniles, such that the juveniles are dependent juveniles within the meaning of N.C.G.S. § 7B–101, and that there is a reasonable probability that such incapability will continue for the foreseeable future.
Of these findings, respondent only challenges finding numbers 17 and 18 as lacking in evidentiary support. Respondent's challenge to these two findings of fact is unavailing. Finding of fact numbers 17 and 18 are the trial court's ultimate findings on the ground of dependency. These two findings are, in turn, supported by finding of fact numbers 12 through 16, in which the trial court made specific factual findings. Respondent has failed to challenge finding of fact numbers 12 through 16, and they are therefore presumed to be supported by competent evidence and are binding on appeal. See In re M.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009). Because respondent has failed to challenge the factual underpinning for the ultimate findings of fact, her challenge to finding of fact numbers 17 and 18 is ineffectual.
Respondent also makes several additional arguments as to why the trial court's conclusion is not supported by the evidence, which we also find unavailing. She argues: (1) that the trial court failed to properly consider the fact that she lived with her parents and would have their assistance in caring for Brenda and Dennis; (2) that the evidence does not support the home study's conclusion that the grandparents had insufficient financial resources to take on Dennis and Brenda; and (3) that evidence from Dr. Bert Bennett, who performed her psychological evaluation, does not support a finding that she is incapable of parenting.
Respondent's first and second arguments are without merit. Based on our review of the trial court's order, it is apparent that the trial court was aware of the family's living situation. The findings make it clear that respondent lived with her parents and was unable to care for her other two children without their assistance. Additionally, the conclusion of the home study is supported by the testimony of social worker Connie Bowman. At the hearing, Ms. Bowman testified that the family currently has a monthly deficit of $55 and that the grandparents have only $50 in their savings account. The grandparents explained that “they have spent down their savings to provide for the needs of their grandchildren.” This evidence supports the conclusion that the grandparents have insufficient financial resources to take on two additional children. Therefore, we reject respondent's first two arguments.
Respondent's third argument is similarly without merit. Dr. Bennett was tendered as an expert witness at the hearing without objection. He testified that respondent's IQ was in the low normal range; that she struggles with learning new information, which would affect her ability to learn new parenting skills; and that her profile also indicates that she may have a tendency towards self-doubt and indecision that could make her vulnerable to developing anxiety under stress. Dr. Bennett testified that despite these issues, respondent has the capacity to function as a parent from a cognitive standpoint. However, he explained that her difficulties arise from her historically unstable mental illness:
[Respondent] is taking several psychoactive medications for her mood disorder and she has a long history of serious and unstable psychiatric illness, including inpatient hospitalizations and the history of multi suicide attempts. She is currently attempting to present herself as not having any of these problems. It is this examiner's opinion that this could result in her ignoring the early warning signs indicating a recurrence of her depression and thus place herself at increased risk.
Dr. Bennett was of the opinion that while respondent was capable of parenting her other two children with the help of her parents, he did not believe that Dennis and Brenda could safely reside with respondent, her parents, and her other two children. Therefore, he did not recommend such an arrangement. We hold that the foregoing evidence supports the trial court's finding that respondent was incapable of parenting.
Thus, we conclude that finding of fact numbers 12 through 18 are sufficient to establish that (1) respondent is incapable of providing for the proper care and supervision of the juveniles and there is a reasonable probability that such incapability will continue for the foreseeable future, and (2) she lacks an alternative child care arrangement. See P.M., 169 N.C.App. at 427, 610 S.E.2d at 406. Accordingly, we affirm the trial court's conclusion that grounds for termination were justified pursuant to N .C. Gen.Stat. § 7B–1111(a)(6).
II.
In her second argument on appeal, respondent challenges the trial court's best interest determination. After an adjudication determining that grounds exist for terminating parental rights, the trial court is required to consider six statutory factors in determining whether termination is in the juvenile's best interest. N.C. Gen.Stat. § 7B–1110(a) (2012); see, e.g., In re S.C.H., 199 N.C.App. 658, 666–67, 682 S.E.2d 469, 474 (2009), aff'd per curiam, 363 N.C. 828, 689 S.E.2d 858 (2010). We review the trial court's determination that a termination of parental rights is in the best interest of the juvenile for an abuse of discretion. In re Anderson, 151 N.C.App. 94, 98, 564 S.E.2d 599, 602 (2002).
Respondent does not contend that the trial court failed to consider the statutorily mandated factors. Indeed, based on our review of the trial court's findings of fact, it is clear that the trial court properly considered all of the factors required by N.C. Gen.Stat. § 7B–1110(a). Respondent instead argues that the trial court should have exercised its discretion not to terminate her parental rights because (1) the juveniles do not have an adoptive home and have been subjected to instability and abuse, and (2) respondent would be capable of parenting if appropriate classes were offered to her. We are not persuaded.
To begin, a trial court is not required to find that a child is adoptable before terminating a parent's parental rights. See In re Norris, 65 N.C.App. 269, 275, 310 S.E.2d 25, 29 (1983) (“It suffices to say that such a finding [of adoptability] is not required in order to terminate parental rights.”). Additionally, the trial court was well aware of the juveniles' history. The court found that the juveniles had been in DSS custody for seven years, and that “[i]t is well past the time for them to have the stability of a permanent placement. Once they are freed for adoption, many more resources are available for DSS to use to implement this.” This finding was well within the trial court's discretion, and we therefore reject respondent's argument to the contrary.
Respondent's second argument is more relevant to the trial court's finding of grounds for termination, rather than its determination regarding the juvenile's best interest. While the trial court is not precluded from considering such evidence during the best interest analysis, it is not required to do so. See In re Blackburn, 142 N.C.App. 607, 613, 543 S.E.2d 906, 910 (2001) ( “Evidence heard or introduced throughout the adjudicatory stage, as well as any additional evidence, may be considered by the court during the dispositional stage.”). At the disposition stage, the trial court's focus is on the best interests of the child, not the circumstances surrounding the parents. See In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251 (1984) (“[T]he fundamental principle underlying North Carolina's approach to controversies involving child neglect and custody [is] that the best interest of the child is the polar star.”). After proper consideration of the statutorily mandated factors, the trial court ultimately concluded that it was in the juveniles' best interest to terminate respondent's parental rights. We find no abuse of discretion in this determination; therefore, we affirm the order of the trial court.
III.
In sum, the trial court did not err in terminating respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(6). Moreover, the trial court did not err in concluding that it was in the juveniles' best interest to terminate respondent's parental rights. Accordingly, we affirm.
Affirmed.
Report per Rule 30(e).