In re J.J.B. and J.D.B. ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 277A19
Filed: 17 July 2020
IN THE MATTER OF: J.J.B., J.D.B.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 8 April
2019 by Judge William B. Davis in District Court, Guilford County. This matter was
calendared in the Supreme Court on 19 June 2020 but was determined on the record
and briefs without oral argument pursuant to Rule 30(f) of the North Carolina Rules
of Appellate Procedure.
Mercedes O. Chut for petitioner-appellee Guilford County Department of Health
and Human Services.
Poyner Spruill LLP, by Andrew H. Erteschik and N. Cosmo Zinkow, for
appellee Guardian ad Litem.
Robert W. Ewing for respondent-appellant mother.
Surratt Thompson & Ceberio PLLC, by Christopher M. Watford, for
respondent-appellant father.
EARLS, Justice.
Respondents, mother and father of the minor children, appeal from the trial
court’s order terminating their parental rights to J.J.B. and J.D.B. (“John” and
“Jessica”).1 After careful review, we affirm.
1The minor children J.J.B. and J.D.B. will be referred to throughout this opinion as
“John” and “Jessica,” which are pseudonyms used to protect the identity of the juveniles and
IN RE J.J.B. AND J.D.B.
Opinion of the Court
On 19 July 2016, the Guilford County Department of Health and Human
Services (DHHS) received a Child Protective Services (CPS) report claiming that
John and Jessica lived in an injurious environment due to domestic violence between
respondents. The report alleged that respondent-father had entered the respondent-
mother’s home while intoxicated and assaulted her. Respondent-mother was
observed to have several injuries, including bleeding from both nostrils, a swollen
upper lip, a contusion to her lip, and a three-inch-long scratch on the right side of her
neck, under her jawline. Respondent-mother told law enforcement that respondent-
father hit her with “maybe like a backhand type of thing.” Law enforcement officers
stated that they could smell alcohol on respondent-father’s breath, that he was acting
in an aggressive manner and making inflammatory statements, and that they
eventually tasered him in order to effectuate his arrest.
On 26 July 2016, social workers interviewed John and Jessica, and the children
reported seeing respondent-father push his way into their home and hit respondent-
mother. John and Jessica told the social worker that respondent-mother was
screaming and yelling, they were scared, and Jessica was crying. They stated that
police were called to the home, and respondent-father was taken to jail.
On 29 July 2016, a Team Decision Making meeting was held, and both
respondents were present. Respondent-father denied the allegations and stated that
for ease of reading.
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IN RE J.J.B. AND J.D.B.
Opinion of the Court
he did not remember much of what happened. Respondent-father entered into a
safety agreement in which he agreed to have no contact with the juveniles unless
supervised by the paternal grandmother. Respondent-father also agreed to complete
a substance abuse assessment and follow all recommendations and attend a domestic
violence intervention program.
On 9 September 2016, social workers met with the juveniles’ older siblings.
Social workers asked them if they had seen respondent-father, and they reported
having seen him on three occasions since school began on 29 August 2016, in violation
of the safety agreement. Social workers also learned that the family was residing with
respondent-father’s sister. Social workers then visited John and Jessica at school, and
they also reported having seen respondent-father.
On 23 September 2016, DHHS filed a petition alleging that John and Jessica
were neglected and dependent juveniles. In addition to the events outlined in the CPS
report, DHHS alleged that respondent-mother had a CPS history which included
reports of sexual abuse involving John and Jessica’s older siblings, substance abuse
issues, and domestic violence. DHHS also alleged that respondent-mother had a
criminal history which included multiple drug-related charges. DHHS further
claimed that respondent-father had numerous drug-related convictions and charges
and had pending misdemeanor criminal charges, including possession of marijuana
paraphernalia, resisting a public officer, disorderly conduct, and assault on a female.
DHHS stated that no suitable relative had been identified for placement of the
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IN RE J.J.B. AND J.D.B.
Opinion of the Court
juveniles, and it was contrary to the juveniles’ safety and best interests to remain in
the custody of either respondent. Accordingly, DHHS obtained nonsecure custody of
the juveniles and placed them in a group home.
On 5 January 2017, the trial court adjudicated John and Jessica neglected and
dependent juveniles. Respondent-mother was ordered to comply with her case plan,
which included: completing a psychological evaluation and following all
recommendations; participating in a domestic violence victims’ group; obtaining and
maintaining appropriate housing and employment; and completing a parent
assessment and training program and following all recommendations. Respondent-
father was also ordered to enter into a case plan with DHHS, and a meeting was
scheduled for him to do so. Respondent-father subsequently entered into a case plan,
which included: completing a psychological evaluation and substance abuse
assessment and following all recommendations; participating in a domestic violence
intervention program; obtaining and maintaining appropriate housing and
employment; and completing a parent assessment and training program and
following all recommendations. Both respondents were granted separate, supervised
visitation. On 8 February 2017, the trial court set the permanent plan for the
juveniles as reunification with a concurrent plan of adoption.
On 15 September 2017, John and Jessica were placed in a licensed foster home
after a disrupted trial home placement with respondent-mother. In a permanency
planning review order entered on 9 May 2018, the trial court found that respondents
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IN RE J.J.B. AND J.D.B.
Opinion of the Court
were not making adequate progress, were minimally participating and cooperating
with DHHS and the guardian ad litem for the juveniles, and were acting in a manner
inconsistent with the juveniles’ health and safety. The trial court changed the
primary permanent plan for the juveniles to adoption with a secondary permanent
plan of reunification. The trial court further ordered DHHS to proceed with filing a
petition to terminate respondents’ parental rights.
On 29 August 2018, DHHS filed a motion to terminate respondents’ parental
rights on the grounds of neglect, willful failure to make reasonable progress, failure
to pay support, and dependency. See N.C.G.S. § 7B-1111(a)(1)–(3), (6) (2017).2 On 8
April 2019, the trial court entered an order in which it determined grounds existed to
terminate respondent-father’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(1)–
(3), but dismissed the allegation as to N.C.G.S. § 7B-1111(a)(6). The trial court further
determined that grounds existed to terminate respondent-mother’s parental rights as
alleged in the motion. The trial court also concluded it was in John’s and Jessica’s
best interests that both respondents’ parental rights be terminated. Accordingly, the
trial court terminated their parental rights. Both respondents appeal.
Respondents argue on appeal that the trial court erred when it determined
termination of their parental rights was in John’s and Jessica’s best interests. We
conclude that the trial court’s ruling was not an abuse of discretion.
2 This statute was amended in non-pertinent part effective 1 October 2018 by N.C.
Session Laws 2018-47, § 2 (June 22, 2018).
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IN RE J.J.B. AND J.D.B.
Opinion of the Court
A termination-of-parental-rights proceeding consists of an adjudicatory stage
and a dispositional stage. N.C.G.S. §§ 7B-1109, -1110 (2019); In re Montgomery, 311
N.C. 101, 110, 316 S.E.2d 246, 252 (1984). If, during the adjudicatory stage, the trial
court finds grounds to terminate parental rights under N.C.G.S. § 7B-1111(a), it
proceeds to the dispositional stage where it must “determine whether terminating
the parent’s rights is in the juvenile’s best interest” based on the following factors:
(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.
N.C.G.S. § 7B-1110(a) (2019).
Both respondents initially argue that this Court should utilize a de novo
standard of review on appeal, rather than an abuse of discretion standard, and that
under such review it would be clear that terminating their parental rights is not in
John’s and Jessica’s best interests. However, this Court recently “reaffirm[ed] our
application of an abuse of discretion standard of review to the trial court’s
determination of ‘whether terminating the parent’s rights is in the juvenile’s best
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IN RE J.J.B. AND J.D.B.
Opinion of the Court
interest[s.]’ ” In re Z.A.M., 374 N.C. 88, 99–100, 839 S.E.2d 792, 800 (2020) (quoting
N.C.G.S. § 7B-1110(a)). “Under this standard, we defer to the trial court’s decision
unless it is ‘manifestly unsupported by reason or one so arbitrary that it could not
have been the result of a reasoned decision.’ ” Id. at 100, 839 S.E.2d at 800 (quoting
Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998)).
In the instant case, in finding of fact 38 the trial court made the following
findings concerning the factors set forth in N.C.G.S. § 7B-1110(a):
a. The age of the juveniles: [John and Jessica] are seven
years, and seven months old.
b. The likelihood of adoption for the juveniles is high. The
juveniles are placed in a preadoptive home. [John and
Jessica] are young and healthy with great personalities.
c. The primary permanent plan for the juveniles is
adoption. Termination of parental rights of each parent is
necessary in order to free the juveniles for adoption and
accomplish the permanent plan for the juveniles. The
termination of [respondents’] parental rights will allow the
juveniles to be legally free to be adopted and have the
permanence they crave.
d. There is a strong bond between the juveniles and
[respondents]. The juveniles enjoy spending time with
[respondents] and respond positively to all visits.
[Respondents] have a deep love for the juveniles and care
for them.
e. The juveniles have a very strong bond with their current
caregivers, even though they were just placed in this home
three months ago. The juveniles seek comfort, advice and
support from their current caregivers. [John] describes this
placement as his home. [Jessica] calls the preadoptive
parents “mom” and “dad”. The juveniles and preadoptive
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Opinion of the Court
parents say their prayers together and the juveniles look
to the preadoptive parents to meet their emotional needs.
On January 31, 2019, [the social worker] went to the foster
home to complete a routine monthly visit. The juveniles
were terrified that they were going to be moved from this
home and ran to the foster mother for protection.
f. The [c]ourt considers as relevant the time the juveniles
have been in foster care, the number of placements the
juveniles have been placed in, and that the juveniles are
thriving in the[ir] current foster/preadoptive home.
[John’s] mental health behaviors have decreased, [Jessica]
is eating more, and her medical condition of psoriasis has
improved. Although the juveniles and [respondents] are
bonded to one another, neither parent is in a position to
provide adequate care and supervision to the juveniles as
of today’s hearing, nor are they likely to within the
reasonably foreseeable future. [Respondents] have had
more than sufficient time to address the needs that led to
removal of the juveniles.
We review the trial court’s dispositional findings of fact to determine whether they
are supported by competent evidence. In re K.N.K., 374 N.C. 50, 57, 839 S.E.2d 735,
740 (N.C. 2020). Dispositional findings not challenged by respondents are binding on
appeal. In re Z.L.W., 372 N.C. 432, 437, 831 S.E.2d 62, 65 (2019) (citations omitted).
The sole finding challenged on appeal is finding of fact 38(e). Respondent-
father argues that the evidence did not support the trial court’s finding of fact that
John and Jessica have a “very strong bond” with their foster parents. However, the
juveniles’ guardian ad litem testified at the termination hearing that John and
Jessica were “quite bonded” to their caregivers. The guardian ad litem testified that
John was “very comfortable and . . . very talkative and affectionate” towards his
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IN RE J.J.B. AND J.D.B.
Opinion of the Court
caregivers. The guardian ad litem witnessed John refer to his caregivers as “mom and
dad” when saying his prayers. Jessica was described as being “very playful with [the
caregivers] and . . . also very comfortable and jumping on backs to go up the steps[.]”
In addition to the guardian ad litem’s testimony, the foster care social worker testified
that John and Jessica were “terrified” that they would be moved out of their foster
home. The social worker testified that at one point, Jessica “literally hopped on [the]
foster mom and would not let go of her and [John] was right on the side of her.”
Respondent-father claims that while petitioner did produce some evidence of a
bond between John and Jessica and their caregivers, it was inadequate to support
the trial court’s finding in light of the brief period of time they had been placed with
the caregivers. Nevertheless, the above testimony permits the reasonable inference
that John and Jessica were “very bonded” to their foster parents. See In re D.L.W.,
368 N.C. 835, 843, 788 S.E.2d 162, 167–68 (2016) (stating that it is the trial judge’s
duty to consider all the evidence, pass upon the credibility of the witnesses, and
determine the reasonable inferences to be drawn therefrom); see also Scott v. Scott,
157 N.C. App. 382, 388, 579 S.E.2d 431, 435 (2003) (stating that when the trial court
sits as fact-finder, it is the sole judge of the credibility and weight to be given to the
evidence, and it is not the role of the appellate courts to substitute its judgment for
that of the trial courts).
Respondent-father additionally contends that the trial court failed to consider
the effect permanent severance would have on the juveniles in light of the uncertainty
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Opinion of the Court
that their current caregivers would adopt them. Respondent-father claims that,
should there be no adoption, the effect of terminating respondents’ parental rights
would be to render John and Jessica “legal orphan[s].” In re J.A.O., 166 N.C. App.
222, 227, 601 S.E.2d 226, 230 (2004).
In re J.A.O. is distinguishable from the instant case. In In re J.A.O., the
juvenile had “a history of being verbally and physically aggressive and threatening,
and he ha[d] been diagnosed with bipolar disorder, attention deficit hyperactivity
disorder, pervasive developmental disorder, borderline intellectual functioning, non-
insulin dependent diabetes mellitus, and hypertension.” Id. at 228, 601 S.E.2d at 230.
The juvenile had “been placed in foster care since the age of eighteen months and
ha[d] been shuffled through nineteen treatment centers over the last fourteen years.”
Id. at 227, 601 S.E.2d at 230. As a result, the guardian ad litem argued at trial that
the juvenile was unlikely to be a candidate for adoption, and termination was not in
the juvenile’s best interests, because it would “cut him off from any family that he
might have.” Id. Despite this evidence, and despite finding that there was only a
“small possibility” that the juvenile would be adopted, the trial court concluded that
it was in the juvenile’s best interests that the mother’s parental rights be terminated.
Id. at 228, 601 S.E.2d at 230. On appeal, the Court of Appeals reversed. The Court of
Appeals balanced the minimal possibilities of adoption “against the stabilizing
influence, and the sense of identity, that some continuing legal relationship with
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Opinion of the Court
natural relatives may ultimately bring” and determined that rendering J.A.O. a legal
orphan was not in his best interests. Id.
Here, the evidence does not show that John or Jessica have the serious issues
the juvenile had in In re J.A.O. The only basis for respondent-father’s contention is
mere speculation that because John and Jessica had been placed with their caregivers
for a relatively short time, issues could arise after a “honeymoon” period, and there
was no evidence of record as to why previous placements failed for John and Jessica.
However, unlike the juvenile in In re J.A.O., John and Jessica are in a preadoptive
placement, and the trial court made an unchallenged finding that John and Jessica
are highly adoptable. Additionally, while the mother in In re J.A.O. had made
reasonable progress towards correcting the conditions which led to the removal of her
son from her care, respondents here failed to make such progress. Instead, the trial
court found at disposition that respondents were not in a position to provide adequate
care for the juveniles and were unlikely to be able to do so for the foreseeable future.
Consequently, we conclude that respondent-father’s argument is without merit.
Both respondents argue that the trial court should not have terminated their
parental rights in light of the strong bond they had with John and Jessica. The trial
court did find that John and Jessica had a strong bond with respondents and that
respondents deeply loved their children. However, “the bond between parent and
child is just one of the factors to be considered under N.C.G.S. § 7B-1110(a), and the
trial court is permitted to give greater weight to other factors.” In re Z.L.W., 372 N.C.
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Opinion of the Court
at 437, 831 S.E.2d at 66. Here, when considering the other factors set forth in
N.C.G.S. § 7B-1110(a), the trial court found: that John and Jessica also had a strong
bond with their foster parents; there was a strong likelihood of adoption; and
termination of respondents’ parental rights would aid in the permanent plan of
adoption. The trial court also found that, when considering other relevant factors,
John and Jessica were “thriving” in their preadoptive home. Furthermore, the trial
court found the juveniles craved permanence, but respondents were not in a position
to provide care for the juveniles, nor were they likely to be able to do so for the
foreseeable future. Therefore, we conclude the trial court appropriately considered
the factors set forth in N.C.G.S. § 7B-1110(a) when determining John’s and Jessica’s
best interests and that the trial court’s determination that respondents’ strong bond
with John and Jessica was outweighed by other factors was not manifestly
unsupported by reason.
Respondents further argue that, given the strong bond between themselves
and John and Jessica, the trial court should have considered other dispositional
alternatives, such as guardianship. The GAL argues that this claim was abandoned
because neither parent asked the trial court to consider guardianship as an
alternative. More fundamentally, the paramount consideration must always be the
best interests of the child. As we explained in Z.L.W.,
[w]hile the stated policy of the Juvenile Code is to prevent
“the unnecessary or inappropriate separation of juveniles
from their parents,” N.C.G.S. § 7B-100(4) (2017), we note
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that “the best interests of the juvenile are of paramount
consideration by the court and . . . when it is not in the
juvenile’s best interest to be returned home, the juvenile
will be placed in a safe, permanent home within a
reasonable amount of time,” id. § 7B-100(5) (2017)
(emphasis added); see also In re Montgomery, 311 N.C. at
109, 316 S.E.2d at 251 (emphasizing that “the 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”).
Id (alterations in original). Consequently, in Z.L.W., we held the trial court did not
abuse its discretion in determining termination, rather than guardianship, was in
the best interests of the juveniles. Id. In the instant case, as in In re Z.L.W., the trial
court’s findings of fact demonstrate that it considered the dispositional factors set
forth in N.C.G.S. § 7B-1110(a) and “performed a reasoned analysis weighing those
factors.” In re Z.A.M., 374 N.C. at 101, 839 S.E.2d at 801. Accordingly, “[b]ecause the
trial court made sufficient dispositional findings and performed the proper analysis
of the dispositional factors,” id., we conclude the trial court did not abuse its discretion
by concluding that termination, rather than guardianship, was in John’s and
Jessica’s best interests.
Both respondents lastly argue that the trial court erred by terminating their
parental rights because statements made by the trial judge at the conclusion of the
termination hearing demonstrated that, in fact, termination was not in John’s and
Jessica’s best interests. After ruling that termination of respondents’ parental rights
was in the juveniles’ best interests, the trial court made the following statement:
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THE COURT: I will say this: this is not part of the order
and you may be thinking maybe it’s out of order, but I
understand the pre-adoptive placement parents are here, –
MS. GERSHON: Yes.
THE COURT: – so I hope that even though parental rights
have been terminated in this case, we’ve heard how much
these children love their parents, but I hope that maybe
there’ll be found some ways to honor that. I’m not going to
say anything more specific. I guess it’s really not my place
to, but to continue to honor that relationship despite the
order from today’s hearing.
Respondent-father asserts that the trial court’s statement communicates “its belief
that the children will [be] better off with being able to love their parents and by being
loved by their parents.” Respondent-father argues that the trial court’s desire in this
regard is inconsistent with its decision to terminate their parental rights.
As is clear from the context, the trial court’s statement to the caregivers that
they should “honor” the relationship between respondents, John, and Jessica was
advice to the prospective adoptive parents, not a repudiation of the ruling just
announced from the bench. Even assuming arguendo that the trial court had the
authority to do so, the trial court’s written order contains no decree that the
caregivers continue the juveniles’ relationship with respondents. See, e.g., In re
A.U.D., 373 N.C. 3, 10, 832 S.E.2d 698, 702 (2019) (concluding that the trial court’s
oral findings are subject to change before the final order was entered, and there was
no error “based merely on the fact that there were differences between the findings
orally rendered at the hearing and those set forth in the written order.”); see also
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Opinion of the Court
N.C.G.S. § 1A-1, Rule 58 (2019) (stating that “a judgment is entered when it is
reduced to writing, signed by the judge, and filed with the clerk of court”). In fact, the
trial court specifically stated that the comments were not a part of its order.
Additionally, the trial court’s order indicates its awareness of the effect of termination
by acknowledging that its “[o]rder completely and permanently terminate[d] all
rights and obligations of [respondents] to the juveniles.” See N.C.G.S. § 7B-1112
(2019) (providing that an order terminating parental rights “completely and
permanently terminates all rights and obligations of the parent to the juvenile and
of the juvenile to the parent arising from the parental relationship”).
We therefore hold the trial court’s conclusion that termination of respondents’
parental rights was in John’s and Jessica’s best interests did not constitute an abuse
of discretion. Accordingly, we affirm the trial court’s order terminating respondents’
parental rights.
AFFIRMED.
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