Opinion
No. COA15-968
04-05-2016
IN THE MATTER OF: S.R.M.F.
Assistant County Attorney Susan Fosmire Davis for petitioner-appellee Henderson County Department of Social Services. Peter Wood for respondent-appellant mother. Parker Poe Adams & Bernstein LLP, by Mindy Campo & Maya Engle, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Henderson County, No. 12 JT 89 Appeal by respondent-mother from judgment entered 29 May 2015 by Judge Peter B. Knight in Henderson County District Court. Heard in the Court of Appeals 14 March 2016. Assistant County Attorney Susan Fosmire Davis for petitioner-appellee Henderson County Department of Social Services. Peter Wood for respondent-appellant mother. Parker Poe Adams & Bernstein LLP, by Mindy Campo & Maya Engle, for Guardian ad Litem. HUNTER, JR., Robert N., Judge.
Respondent-mother ("Respondent") appeals following a judgment terminating her parental rights to her minor child, S.R.M.F. ("Stan"). We hold the trial court did not abuse its discretion in terminating her parental rights based upon Stan's best interests.
We use pseudonyms for ease of reading and to protect the identity of the juvenile.
On 18 July 2012, the Henderson County Department of Social Services ("DSS") initiated the underlying case by filing a petition alleging Stan was a neglected juvenile. Stan was born in April 2012, and tested positive for opioids and amphetamines at birth. Stan remained in his parents' custody and began treatment to wean off of drugs, and DSS helped Respondent obtain substance abuse and mental health assessments. Respondent was scheduled to start substance abuse treatment on 12 June 2012, but she did not show up for her appointments and did not submit to requested drug screens. Respondent also missed two mental health assessments in June 2012, but she did attend a third appointment where it was recommended she attend further therapy sessions. By the time DSS filed the juvenile petition, Respondent had not scheduled any further therapy sessions.
After a hearing on 9 August 2012, the trial court entered an order on 4 September 2012 adjudicating Stan to be a neglected juvenile. In a separate 9 August 2012 disposition order, the trial court left custody of Stan with Respondent and set forth a detailed case plan for Respondent that compelled her to get substance abuse and mental health treatment. Respondent initially made progress toward completing her case plan, and the trial court continued custody and placement of Stan with her.
On 13 June 2013, respondent sent a text message to the social worker assigned to the juvenile case, stating, "We are leaving for Florida. I can't take North Carolina anymore. We will be much better off." This text message caused DSS to file an emergency motion for review so that it could take non-secure custody of Stan, which the trial court allowed. The trial court continued custody of Stan with DSS and, for the next twelve months, repeatedly ordered DSS to continue to work towards reunification of Stan with Respondent. On 30 June 2014, the trial court entered an order that relieved DSS from making additional reunification efforts and changed the permanent plan for Stan to include termination of parental rights and adoption.
DSS filed a petition to terminate Respondent's parental rights on 11 July 2014, based upon allegations of neglect and failure to correct the conditions that led to Stan's removal. See N.C. Gen. Stat. § 7B-1111(a)(1)-(2) (2013). A hearing on the petition was scheduled for 6 November 2014, but the trial judge recused herself on that date and the hearing was continued until 9 April 2015. After a two-day hearing on 9 April and 14 May 2015, the trial court entered a judgment on 29 May 2015 terminating Respondent's parental rights to Stan. The court concluded both grounds alleged in the petition existed to terminate Respondent's parental rights, shown by her failure to address her substance abuse and mental health problems, failure to attend child and family team meetings with DSS, failure to consistently attend Stan's medical appointments, and inability to maintain a stable residence. The trial court further concluded that it was in Stan's best interests to terminate Respondent's parental rights. Respondent filed timely notice of appeal from the trial court's judgment on 15 June 2015.
The trial court's order also terminated the parental rights of Stan's father, but he is not a party to this appeal.
Respondent now argues that the trial court abused its discretion in concluding that it is in Stan's best interests to terminate her parental rights. We disagree.
"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) (2013). When determining whether it is in the best interests of a child to terminate parental rights, the trial court must consider the factors set forth in N.C. Gen. Stat. § 7B-1110, which include the juvenile's age, the likelihood of the adoption of the juvenile, whether termination will accomplish the permanent plan for the juvenile, the bond between the juvenile and the parent, and the quality of any relationship between the juvenile and any potential adoptive parent, guardian, or custodian. N.C. Gen. Stat. § 7B-1110(a)(1)-(5) (2013). "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).
Here, the trial court's order contains findings of fact which address each of the factors set forth in section 7B-1110. Respondent does not challenge the trial court's findings, and consequently, they are binding on appeal. In re S.C.R., 198 N.C. App. 525, 532, 679 S.E.2d 905, 909 (2009). Respondent argues the trial court placed an inordinate amount of emphasis on her inability to make progress on her case plan, and the court did not adequately consider her bond with Stan. This argument asserts a belief that the trial court gave improper weight to some of the relevant factors in making its determination. Respondent essentially asks this Court to substitute its judgment regarding the weight of these factors for that of the trial court, which we will not do. In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (holding "when a trial judge sits as both judge and juror, as he or she does in a non-jury proceeding, it is that judge's duty to weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom." (quotation marks omitted)).
Further, Respondent contends the trial court abused its discretion in concluding that termination of her parental rights was in Stan's best interest because the court did not adequately consider, and DSS did not present, evidence of dispositional alternatives such as guardianship or custody with a relative or court-approved caretaker. However, when moving to terminate parental rights, DSS is not required to show that other dispositional alternatives for the juvenile are completely foreclosed, and the trial court is not required to consider any alternatives. See, e.g., In re M.M., 200 N.C. App. 248, 258, 684 S.E.2d 463, 469 (2009) ("A trial court may, but is not required to, consider the availability of a relative placement during the dispositional phase of a hearing to terminate parental rights."), disc. review denied, 364 N.C. 241, 698 S.E.2d 401 (2010). This argument is more properly presented in an appeal from an order ceasing reunification efforts and setting the permanent plan for a juvenile as adoption, such as the order entered by the trial court in this matter on 30 June 2014. Respondent failed to appeal from that order and is precluded from bootstrapping such an argument to the current appeal.
The question before the trial court at disposition in a termination of parental rights proceeding is whether termination of parental rights is in the best interests of the juvenile. N.C. Gen. Stat. § 7B-1110(a) (2013). The trial court's findings of fact show that it carefully considered whether terminating parental rights was in Stan's best interests, and we cannot conclude the trial court abused its discretion in terminating Respondent's parental rights. Accordingly, we affirm the trial court.
AFFIRMED.
Judge Davis and Zachary concur.
Report per Rule 30(e).