In re B.E. ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 11A20
Filed 11 December 2020
IN THE MATTER OF: B.E., J.E.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from orders entered on 24
September 2019 and 25 October 2019 by Judge William F. Helms III in District Court,
Union County. This matter was calendared in the Supreme Court on 23 November
2020 but determined on the record and briefs without oral argument pursuant to Rule
30(f) of the North Carolina Rules of Appellate Procedure.
Perry, Bundy, Plyler & Long, LLP, by Ashley J. McBride, for petitioner-appellee
Union County Division of Social Services.
Winston & Strawn LLP, by John H. Cobb, for appellee Guardian ad Litem.
Sydney Batch for respondent-appellant mother.
Jeffrey William Gillette for respondent-appellant father.
BEASLEY, Chief Justice.
Respondent-mother and respondent-father appeal from the trial court’s orders
terminating their parental rights in the minor children “Justin”1 and “Billy.” We
affirm.
1 Pseudonyms are used throughout the opinion to protect the juveniles’ identity and
for ease of reading. A third child will be referred to by the pseudonym “Chaz.”
IN RE B.E., J.E.
Opinion of the Court
I. Procedural History
Respondents have three children together: Justin, born in 2006; Billy, born in
2004; and Chaz, born in 2003. In November 2016, the Union County Division of Social
Services (DSS) obtained nonsecure custody of respondents’ children and filed juvenile
petitions alleging they were neglected and dependent. The petitions cited a Child
Protective Services (CPS) report received on 29 September 2016 stating that Chaz
came to school with a “busted lip” and said respondent-father had “backhanded him
in the face and repeatedly hit him in the head with a fist” while intoxicated. The
report indicated respondent-father regularly drank alcohol and became angry. It also
described respondents’ children as frequently hungry due to the “minimal food” in the
home and described the home as rat-infested and unkempt.
DSS’s petitions further alleged that respondent-father admitted striking Chaz
and agreed to refrain from physical discipline as part of a safety agreement. However,
respondent-father refused to obtain a substance abuse assessment and failed to
attend an assessment scheduled for 28 October 2016. After a social worker met with
respondents, respondent-father participated in a substance abuse assessment on 3
November 2016 but refused to engage in the recommended treatment to address “his
intensive history of abusing alcohol.”
Finally, the petitions alleged DSS received another CPS report of respondent-
father repeatedly striking Chaz on the head and knocking him to the ground while
drinking alcohol on 7 November 2016. When a social worker met with respondents
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about the report, respondent-father refused to enter into a safety agreement to refrain
from physical discipline, abstain from alcohol, or participate in substance abuse
treatment. Respondents told DSS that they had no family support or alternative
placement options for the children.
Upon the parties’ stipulation to facts consistent with the petitions’ allegations,
the trial court adjudicated respondents’ children neglected and dependent juveniles
on 7 February 2017. The court maintained the children in DSS custody and ordered
respondent-father to abstain from alcohol, attend Alcoholics Anonymous, engage in
substance abuse treatment through Daymark Recovery, attend parenting classes,
complete the activities in his Out of Home Services Agreement with DSS, maintain a
residence separate from respondent-mother, and submit to random alcohol screens.
Respondent-mother was ordered to attend parenting classes, complete the activities
in her Out of Home Services Agreement, and obtain a psychological and mental
health evaluation and comply with any treatment recommendations. The court
forbade both respondents to discuss the case with the children “at any time.”
While awaiting an appropriate therapeutic placement for Chaz, the trial court
authorized a trial home placement for the child with respondent-mother beginning in
March 2017. At the initial review hearing on 3 May 2017, however, the court ordered
Chaz removed from respondent-mother’s home and returned to foster care. In its
review order, the trial court found respondent-mother “was unable to get [Chaz] to
the [school] bus on time” and had failed to administer the child’s medication properly
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despite “multiple instructions” and DSS’s provision of “medication bags . . . with the
correct amount of medication she needed to administer the medication each night.”
The court further found that, despite receiving food stamps and additional financial
assistance, respondent-mother “cannot keep food in the home” and “has demonstrated
an inability to manage her finances” to the detriment of the children; that respondent-
mother’s home “is in poor condition,” infested with insects and rodents, and strewn
with trash and soiled clothing; that “the clothing in [Chaz’s] bedroom had dog feces
mixed within it”; and that respondent-mother “sends [Chaz] to school in clothes that
are dirty and too small for him.” Although respondent-mother had completed a series
of parenting classes, the court found she continued to make inappropriate promises
and other statements about the case to the children and had otherwise failed to show
“she is able to put what she has learned into effect.”
With regard to respondent-father, the trial court found that he continued to
drink alcohol, that he smelled of alcohol at his visits with the children, and that he
had informed DSS “he would cut back on drinking but would never quit completely”
but “the changes he would be making would be temporary only because of DSS
involvement.”
At the initial permanency planning hearing held 21 March 2018, the trial court
concluded that further DSS efforts to reunify the children with respondents “clearly
would be futile, unsuccessful and inconsistent with the [children’s] health and safety
and need for a safe, permanent home within a reasonable period of time.” The court
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Opinion of the Court
established a primary permanent plan of adoption for the children with a secondary
plan of custody or guardianship with an approved caretaker.
DSS filed a motion for termination of respondents’ parental rights on 14 May
2018. After a series of continuances, the trial court held an adjudicatory hearing
beginning on 27 February 2019, proceeding over four dates, and concluding on 8 May
2018. On 24 September 2019, the court entered an order adjudicating the existence
of grounds to terminate respondents’ parental rights for (1) neglect, (2) willful failure
to make reasonable progress to correct the conditions that led to the children’s
removal from the home, and (3) dependency.
The trial court held a dispositional hearing on 27 September 2019. In an order
entered on 25 October 2019, the court concluded that terminating respondents’
parental rights was in the best interests of Justin and Billy but not in the best
interests of Chaz. The court terminated respondents’ parental rights in Justin and
Billy and dismissed DSS’s motion as to Chaz. See N.C.G.S. § 7B-1110(a)–(b) (2019).
Respondents each filed timely notice of appeal pursuant to N.C.G.S. § 7B-
1001(a1) (2019). We consider their appeals in turn.
II. Respondent-Mother’s Appeal
Respondent-mother claims the trial court erred in concluding that grounds
exist to terminate her parental rights pursuant to N.C.G.S. § 7B-1111(a)(1)–(2) and
(6). “We review a trial court’s adjudication under N.C.G.S. § 7B-1109 ‘to determine
whether the findings are supported by clear, cogent and convincing evidence and the
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findings support the conclusions of law.’ The trial court’s conclusions of law are
reviewable de novo on appeal.” In re A.L.S., 374 N.C. 515, 519 (2020) (quoting In re
C.B.C., 373 N.C. 16, 19 (2019)). We have held that “an adjudication of any single
ground in N.C.G.S. § 7B-1111(a) is sufficient to support a termination of parental
rights.” In re E.H.P., 372 N.C. 388, 395 (2019). Therefore, if we determine that one of
the trial court’s adjudicated grounds for termination is supported by the findings of
fact and conclusions of law, we need not review the remaining grounds. Id.The trial court concluded, inter alia, that respondent-mother had neglected the
children under N.C.G.S. § 7B-1111(a)(1). A juvenile is “neglected” within the meaning
of our Juvenile Code if he does not receive “proper care, supervision, or discipline”
from his parents or “lives in an environment injurious to [his] welfare.” N.C.G.S.
§ 7B-101(15) (2019). “In order to constitute actionable neglect, the conditions at issue
must result in ‘some physical, mental, or emotional impairment of the juvenile or a
substantial risk of such impairment.’ ” In re K.L.T., 374 N.C. 826, 831 (2020) (quoting
In re Stumbo, 357 N.C. 279, 283 (2003)).
For purposes of N.C.G.S. § 7B-1111(a)(1),
“the dispositive question is the fitness of the parent to care
for the child ‘at the time of the termination proceeding.’ ”
In the event that “a child has not been in the custody of the
parent for a significant period of time prior to the
termination hearing, ‘requiring the petitioner in such
circumstances to show that the child is currently neglected
by the parent would make termination of parental rights
impossible.’ ” In such circumstances, the trial court may
find that a parent’s parental rights in a child are subject to
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termination on the grounds of neglect in the event that the
petitioner makes “a showing of past neglect and a
likelihood of future neglect by the parent.”
In re S.D., 374 N.C. 67, 73 (2020) (quoting In re N.D.A., 373 N.C. 71, 80 (2019)).
In support of its adjudication under N.C.G.S. § 7B-1111(a)(1), the trial court
recounted the conditions leading to the children’s prior adjudication as neglected on
7 February 2017. As respondent-mother states in her brief, “[t]he children were
removed from the custody of their parents primarily due to the father’s alcohol abuse
and improper discipline. The trial court also noticed issues with the cleanliness of the
home.” The court also made findings detailing the causes of Chaz’s failed trial home
placement with respondent-mother in the spring of 2017.2
Respondent-mother argues that, given the progress she and respondent-father
had made at the time of the termination hearing, the evidence and the trial court’s
findings of fact do not support the court’s conclusion that Justin and Billy were likely
2 Respondent-mother objects to the trial court’s reliance on Chaz’s 2017 trial home
placement as evidence that she is likely to neglect the children in the future. In the two years
since the trial placement, she avers, respondent-father returned to live with her, and they
“completed two parenting classes, engaged in therapy, and had maintained a clean and
substance free home for an extended period time.” However, the trial court was free to
consider the results of a prior trial home placement in determining whether, at the time of
the termination hearing, respondent-mother was likely to subject the children to future
neglect. See In re Ballard, 311 N.C. 708, 716 (1984) (“[T]he trial court must admit and
consider all evidence of relevant circumstances or events which existed or occurred either
before or after the prior adjudication of neglect.”).
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to experience further neglect if they were returned to her custody. See generally In re
Z.V.A., 373 N.C. 207, 212 (2019) (requiring court to “consider evidence of changed
circumstances occurring between the period of past neglect and the time of the
termination hearing”). She contends the trial court “relied heavily on circumstances
that no longer existed at the time of the [termination] hearing.” We disagree.
The trial court made the following additional findings of fact which support its
conclusion that “there is a high likelihood of repeated neglect if the juveniles were
returned to [respondent-mother]”:
16. ...
(A) . . .
i. [Respondent-mother] has been ordered not to
discuss this case with the juveniles. . . . She has
continued to discuss the case with the juveniles,
making them promises about the outcome of the case
and telling them what to say to providers and to DSS
workers. This has impeded the juveniles[’] ability to
make emotional progress in their current placement.
ii. The juveniles have been led to believe that things
will get better. They have been told that they would
not have to do anything because she would get them
back.
....
vii. [Respondent-mother] has failed to understand the
impact of her actions or inactions, has had on her
children. She fails to understand the importance of
maintaining a safe, clean environment for the
juveniles.
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Opinion of the Court
(B) ...
i. [Respondent-mother] has not gained insight into the
effects of [respondent-]father’s severe alcohol abuse
and physical abuse on the children . . . . She
minimizes [respondent-]father’s actions and makes
excuses for his behavior.
ii. [Respondent-mother] . . . cannot stand without
assistance for more than 15 minutes and has
difficulty completing basic household tasks. She
continues to reside with [respondent-father], who
does not help or assist her with the housework.
iii. [Respondent-mother] is in need of counseling for
anxiety and depression, in part due to sexual abuse
of her as a child and young adult, but she does not
believe she needs counseling and will not continue
counseling.
17. ...
(A) ...
....
iv. [Respondent-father] admits to drinking alcohol since
age 9, sometimes as many as 24 beers per day, but
he does not believe he needs to permanently stop
drinking and has not showed insight into his
drinking problem after undertaking some treatment
through Daymark Recovery Services.
(B) ...
i. [Respondent-father] has failed to understand [the]
impact that improper discipline has on the juveniles,
and he has not acknowledged that his discipline was
improper, therefore making it likely that he would
exercise improper discipline again in the future.
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Opinion of the Court
ii. [Respondent-father] says that he has corrected his
alcohol use. However, he acknowledges he may
drink again at some point in the future.
iii. [Respondent-father] will not complete therapy to
address his issues of abandonment, as well as his
lack of insight into his own substance abuse issues.
To the extent respondent-mother does not contest these findings, they are binding on
appeal. Koufman v. Koufman, 330 N.C. 93, 97 (1991).
Respondent-mother challenges the portion of Finding of Fact 16(A)(i) which
states her ongoing discussions of the case with the children “impeded the[ir] ability
to make emotional progress in their current placement.” She acknowledges that, “[a]t
some point after the adjudication, [she] was ordered not to discuss the case with her
children” and that she “should have refrained from making the comments to her
children[.]” However, she insists DSS adduced no evidence that her statements
“prevented the children from making emotional progress.”
In its initial “Adjudication and Disposition Order” entered in February 2017
and in subsequent review orders, the trial court ordered respondent-mother not to
“discuss the case with the juveniles at any time” or “under any circumstances.” The
DSS social workers who observed respondent-mother’s visitations with the children
testified respondent-mother routinely flouted this prohibition as reflected in Finding
of Facts 16(A)(i)–(ii). Respondent-mother’s inappropriate comments to the children
were an ongoing problem throughout the case up to the time of the termination
hearing.
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Opinion of the Court
As for the effect of these comments on the children, a social worker testified
that Chaz had “a hard time” and became disruptive in his foster placement after
respondent-mother falsely assured him, “’You’re coming home. Don’t worry about it.
They can’t keep you that long[.]” More recently, respondent-mother had told Billy
“she can get the kids back in the snap of a finger,” leaving him to wonder why he
remained in foster care if his mother “could change the judge’s mind with the snap of
a finger[.]” Both social workers testified that this type of statement to the children
“gets their hopes up” by creating unrealistic expectations and promising outcomes
respondent-mother cannot deliver. We find this evidence sufficient to support an
inference that the children’s emotional progress was at least “impeded” by
respondent-mother’s actions.
Respondent-mother next objects to Finding of Fact 16(A)(vii) and claims the
evidence showed she had come to understand, at the time of the termination hearing,
both “the importance of maintaining a clean and safe home for her children” and “how
her own actions negatively affected the children.”
To the extent respondent-mother’s objection concerns her willingness to
maintain a clean home, we agree the trial court’s finding does not account for her
improvement in this area. Respondent-mother acknowledged the home had fallen
into “disarray” after her back surgery in 2015 and was “a mess” when the children
were removed by DSS in November 2016. However, she testified that she and
respondent-father had cleaned up the house after he returned in 2017 with the
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Opinion of the Court
assistance of the DSS social worker and a “Medicaid nurse” who comes to the
residence ten hours per week to assist with cleaning. Respondent-mother introduced
photographs of the home taken on the morning of 28 February 2019, depicting “how
the house looks now[.]”
The DSS social worker largely corroborated respondent-mother’s account of the
improvement made to conditions in the state of the home between 2017 and the social
worker’s final visit to the residence in March 2018. Absent any proffer of evidence
contradicting respondent-mother’s evidence of her ongoing maintenance of a clean
home up to the time of the termination hearing, we deem this portion of Finding of
Fact 16(A)(vii) to be unsupported by the record. Therefore, we disregard the finding
for purposes of our review. In re J.M.J.-J., 374 N.C. 553, 559 (2020); In re J.M., 373
N.C. 352, 358 (2020).
The remainder of Finding of Fact 16(A)(vii) is amply supported by the evidence,
including respondent-mother’s own testimony. Despite her completion of two sets of
parenting classes in February and May of 2017, respondent-mother continued to
exhibit a lack of understanding of her responsibility to ensure a safe home
environment for her children. DSS introduced a psychological evaluation of
respondent-mother prepared by Dr. George Popper in November 2017. Dr. Popper
described respondent-mother’s “insight as to the impact of substance abuse and
physical discipline . . . on her children” as “inconsistent.” By the time of the
termination hearing, respondent-mother no longer accepted that the children were
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Opinion of the Court
neglected at the time of their removal in November 2016. She denied respondent-
father had been intoxicated when he “backhanded” Chaz in the mouth and accused
the child of exaggerating the incident and of biting his own mouth on the school bus
the following morning in order to draw blood and “make some stuff happen.”
Respondent-mother also denied respondent-father’s alcohol use had caused a
disruption in the home and suggested his drinking was “[n]ot necessarily . . . a
problem with [the] children being in the home” because respondent-father “was not
staggering around falling down drunk.”
The evidence also supports the trial court’s finding that respondent-mother
fails to understand the impact of her actions and inactions on the children. In addition
to her failure to recognize how her inappropriate statements affected the children,
the evidence showed respondent-mother engaged in inappropriately sexualized
contact with the children during visitations, requiring ongoing correction by DSS staff
or respondent-father. Moreover, in her hearing testimony, respondent-mother
repeatedly disavowed any duty to protect her children from respondent-father’s
substance abuse, anger issues, or physical disciplining, insisting that she “cannot do
nothing about it” and “cannot force [respondent-father] to do anything.” We find that
respondent-mother’s argument as to Finding of Fact 16(A)(vii) lacks merit.
Respondent-mother next challenges the evidentiary support for Finding of
Fact 16(B)(i), which states she “has not gained insight into the effects of
[respondent-father’s] severe alcohol abuse and physical abuse on the children” and
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“minimizes . . . and makes excuses for his behavior.” The evidence, however, supports
this finding. Respondent-mother devoted a substantial portion of her hearing
testimony to denying that the children had been neglected, downplaying the degree
of respondent-father’s alcohol consumption, and insisting that the physical discipline
respondent-father inflicted on Chaz was entirely appropriate, or at least
understandable. Respondent-mother refused to believe respondent-father’s own
account of his alcohol consumption and claimed to be unaware of any occasion when
he had hit the children while drinking. In additional to accurately reflecting
respondent-mother’s testimony, Finding of Fact 16(B)(i) is supported by Dr. Popper’s
findings regarding respondent-mother’s tendency to defend respondent-father and
“minimize his physical abuse of [Chaz].” Respondent-mother’s argument lacks merit.
To the extent respondent-mother separately contends that the evidence
showed her and respondent-father’s mutual “acknowledgment of the importance of
maintaining a sober household and refraining from physical discipline,” we again find
her position without merit.
The evidence did show respondent-father’s completion of the Moderate Level
Substance Abuse Treatment Program at Daymark Recovery Services in October
2018.3 On the date of his graduation from Daymark, however, he announced to his
group, “My medications allow me to drink beer not liquor. [Respondent-mother] will
3 Respondent-father also completed Daymark’s Substance Abuse Intensive Outpatient
Treatment Program in February 2017.
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Opinion of the Court
only be mad if it’s liquors. I can’t say that I won[’]t have another drink but it won’t be
every day.”
By respondent-father’s own account, he began drinking alcohol at nine years
of age and had continued until November 2017 at age 62. He had completed several
previous courses of treatment for alcohol abuse, including inpatient treatment at
Black Mountain in 1976 which led to a years-long period of sobriety. Respondent-
father then resumed drinking and accumulated multiple convictions for impaired
driving. Respondent-father also previously attended outpatient treatment at
Daymark in 2012.
More recently, respondent-father claimed to have quit drinking alcohol for a
three-year period after hitting respondent-mother and then promising her that he
“wouldn’t drink anymore.”4 He testified he had resumed drinking after this interval
because he “wanted a beer” and “she didn’t care if [he] drank beer, just don’t drink no
liquor.” Respondent-father claimed respondent-mother objected to him drinking
liquor “simply because she knows [he is] not supposed to be drinking it with [his
heart] medicine.”
Although respondent-father testified he had not drunk alcohol since November
2017, he refused to acknowledge his alcoholism or commit to refrain from drinking
alcohol:
4 According to respondent-mother, respondent-father had been arrested for hitting her
in “[p]robably 2003.”
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Q. Okay. You have been told you’re an alcoholic,
haven’t you?
A. Does that make me an alcoholic?
....
Q. But you don’t believe you are?
A. I like beer.
Q. You’re not gonna – you might drink again, right?
A. Well, they ain’t gonna quit making it, but I might not
quit – might not start back drinking either.
Q. Okay.
A. But there is always that possibility.
....
Q. . . . But you don’t admit you’re an alcoholic?
A. Well, my – I don’t admit that I’m retarded either, but I
don’t see the point in discussing it.
Q. And you believe you’re powerless over alcohol?
A. No.
Respondent-father also insisted that his physical discipline of Chaz was an
appropriate response to the child’s conduct. He did not commit to refraining from
similar discipline in the future. Moreover, respondent-father refused to follow Dr.
Popper’s recommendation to obtain treatment for his anger issues, believing he did
not “have anger issues.”
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Opinion of the Court
Contrary to her assertion on appeal, respondent-mother did not commit to
maintaining a household free from alcohol abuse or physical discipline. She took the
position that she was accountable only for her own actions and was powerless to exert
any control over respondent-father or “force him to do anything.” Asked if she had
ever threatened to leave respondent-father if he continued to drink alcohol,
respondent-mother replied, “No, not really. I told him that – I have told him straight
out that, if he’s gonna drink liquor, that I’m not gonna be with him, and I’m – that’s
the truth, I’m not, because I can’t deal with it no more.” As respondent-father’s
beverage of choice was beer, respondent-mother’s ultimatum did not in any way
amount to a demand for his sobriety. Her objection to Finding of Fact 16(B)(i) on this
basis is unfounded.
Respondent-mother also claims the trial court erred in basing its adjudication
in part on Finding of Fact 16(B)(iii), which notes her refusal to pursue counseling
recommended by Dr. Popper to address the sexual abuse and other trauma she
experienced as a child. While acknowledging “it is not unreasonable for the trial court
to want [her] to address her underlying childhood traumas,”5 respondent-mother
5 Insofar as respondent-mother’s argument may also be construed to challenge the
evidentiary support for the finding that she “does not believe she needs counseling and will
not continue counseling,” we find her claim refuted by her own testimony as well as the
testimony of the DSS social worker. Respondent-mother’s argument that an unwillingness to
discuss her childhood trauma with a therapist “is not the same as her unwillingness to go [to
therapy]” lacks merit. And although respondent-mother offered to resume therapy on the
date of the termination hearing, nearly two-and-a-half years into the case, the trial court was
free to find her offer neither timely nor credible. See In re D.L.W., 368 N.C. 835, 843 (2016).
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contends “DSS failed to provide a nexus between [her] past trauma and how it [sic]
neglected her children.”
The evidence showed Dr. Popper recommended counseling for respondent-
mother “to deal with the emotional trauma she suffered as a child[.]”He found
respondent-mother’s “parenting role models were obviously quite poor,” and “the
trauma she experienced growing up has had a lasting impact on her ability to care
for herself and for her children.” Dr. Popper deemed it likely that the emotional abuse
respondent-mother suffered at the hands of her alcoholic mother and the sexual abuse
inflicted by her brothers and uncle made her less equipped to assert herself against
potential abusers in order to protect her children. Dr. Popper expressed his “concern
that [respondent-mother] could be intimidated by a potential abuser” and
recommended “this [a]s one of the issues that she should address in counseling.”
The nexus between respondent-mother’s unresolved childhood trauma and her
ability to provide her children with proper care and supervision and a safe
environment was laid bare by respondent-mother’s hearing testimony. Asked about
her reaction to respondent-father’s alcohol use in the home, respondent-mother
described how she would “shut down” to protect herself, as follows:
My momma was an alcoholic. After so many drinks, she
started hitting, and I had to shield myself, and it was my
problem. And every time I seen [respondent-father] drink,
after the third beer, I shielded myself. I kept myself in a
little box for I cannot get hurt. And I kept the boys – I said,
“Okay” – I even made them aware of it. “Do not make
anybody mad when they are drinking,” because of my past,
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and I recently got over my past of that, because when you
live with an alcoholic or raised by an alcoholic, it is hard.
You got to know the boundaries. And I – after three beers
– I know he wasn’t gonna hurt me or anything, but from
my past, I automatically shield myself.
Respondent-mother also voiced her helplessness to resolve respondent-father’s “anger
management problem,” explaining she had learned to “back off” when she saw he was
getting upset. She also seemed to justify respondent-father backhanding Chaz in the
mouth in September 2016 by noting, “If I done that to my daddy, he would have done
the same thing to me.” Because respondent-mother’s testimony vindicates each of Dr.
Popper’s concerns about her need for treatment to address the impact of her childhood
trauma, the trial court did not err in citing this issue as a factor tending to show a
likelihood of future neglect.
Having reviewed each of the contested findings of fact, we now turn to
respondent-mother’s claim that the trial court’s findings do not support its conclusion
that “there is a high likelihood of repeated neglect if the [children] were returned to
her” care. See generally In re J.O.D., 374 N.C. 797, 807 (2020) (“[T]he trial court’s
determination that neglect is likely to reoccur if [the juvenile] was returned to [the
respondent-parent’s] care is more properly classified as a conclusion of law.”).
Respondent-mother asserts the trial court improperly based its conclusion on
“circumstances that no longer existed at the time of the [termination] hearing.” We
disagree.
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As the trial court found, when given an opportunity to parent Chaz without
respondent-father in the home, respondent-mother was unable to administer his
medication or otherwise care for him properly. More significantly, although she had
made progress regarding the cleanliness of her residence and had completed
parenting classes, respondent-mother had not resolved the primary risk posed to the
children—that of respondent-father’s continued presence in the home. See In re
Z.V.A., 373 N.C. 207, 212 (2019) (“The district court’s determination in the present
case that neglect would likely be repeated if [the child] was returned to respondent-
father was intrinsically linked to respondent-father’s inability to sever his
relationship with respondent-mother.”); see also In re A.R.A., 373 N.C. 190, 198 (2019)
(“Respondent-mother’s argument disregards the primary reason for the removal of
her children—the presence of the father in the home.”).
As he had multiple times in the past, respondent-father had completed a course
of substance abuse treatment at the time of the termination hearing and claimed to
have abstained from alcohol since November 2017. However, he continued to deny his
alcoholism and felt at liberty to resume drinking beer provided he abstained from
liquor. Respondent-father had failed to recognize or obtain treatment for his anger
problem and refused to acknowledge using inappropriate physical discipline on Chaz.
He testified that DSS had taken the children into custody because the social worker
“just wanted to show [him] she had the power to do what she said she could do.”
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At the time of the termination hearing, respondent-mother denied the children
had ever experienced neglect or inappropriate discipline in the home and disclaimed
any responsibility for respondent-father’s alcohol abuse or disciplinary methods. She
had further failed to address the psychological issues identified by Dr. Popper which
prevented her from recognizing the harm caused to the children by respondent-
father’s behaviors and from taking the necessary steps to provide the children with a
safe home. Therefore, we hold the trial court did not err in adjudicating grounds for
termination of her parental rights for neglect under N.C.G.S. § 7B-1111(a)(1).
Because we affirm the trial court’s adjudication of neglect, we do not review
respondent-mother’s arguments regarding the additional grounds for termination
found by the trial court. In re E.H.P., 372 N.C. at 395. Respondent-mother does not
separately contest the court’s dispositional determination that terminating her
parental rights is in Justin and Billy’s best interests. Accordingly, we affirm the trial
court’s orders as to respondent-mother.
III. Respondent-Father’s Appeal
Respondent-father does not challenge the trial court’s adjudication of grounds
to terminate his parental rights under N.C.G.S. § 7B-1111(a). Rather, he argues that
the trial court abused its discretion at the dispositional stage of the proceeding by
concluding it was in Billy’s best interests to terminate respondents’ parental rights,
thereby “ignoring Billy’s expressed wishes not to be adopted[.]”
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If the trial court adjudicates the existence of one or more grounds for the
termination of parental rights, it must then “determine whether terminating the
parent’s rights is in the juvenile’s best interest” after considering 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). “The trial court’s dispositional findings are binding . . .
if they are supported by any competent evidence” or if not specifically contested on
appeal. In re E.F., 375 N.C. 88, 91 (2020).
We review the trial court’s determination of a juvenile’s best interests under
N.C.G.S. § 7B-1110(a) only for abuse of discretion. Id. “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.’ ” In re J.J.B.,
374 N.C. at 791 (quoting In re Z.A.M., 374 N.C. 88, 100 (2020)). A trial court may also
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Opinion of the Court
abuse its discretion if it “misapprehends the applicable law,” Chappell v. N.C. Dep’t
of Transp., 374 N.C. 273, 281 (2020), or fails to comply with a statutory mandate,
Harris v. Harris, 91 N.C. App. 699, 705–06 (1988).
Our adoption statutes require the child’s consent to an adoption if he is at least
twelve years of age. N.C.G.S. § 48-3-601(1) (2019). Under N.C.G.S. § 48-3-603(b)(2)
(2019), however, the trial court is authorized to “issue an order dispensing with the
[child’s] consent . . . upon a finding that it is not in the best interest of the [child] to
require the consent.”
The trial court made the following findings of fact regarding the dispositional
factors in N.C.G.S. § 7B-1110(a):
(A) . . . [Billy] is 15-years old. He will not reach the age
of majority for three years. The undersigned [j]udge
has determined that he does not need [Billy’s]
consent for adoption based on the evidence and
testimony heard throughout the case.
(B) . . . [L]ikelihood of adoption for [Billy] is high.
(C) . . . Termination of Parental Rights would aid in
accomplishing the permanent plan for [Billy] which
is adoption.
(D) . . . [Billy] has somewhat of a bond with his mother
but is afraid of his father. [Billy’s] only reason to
return home would be to protect his younger brother,
[Justin] from [respondent-father] and [Chaz]. [Billy]
feels as he is one of the parents in regard to [Justin].
This does not constitute a positive bond between
[Billy] and his parents. [Billy] is afraid of returning
home.
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(E) [Billy] has an interesting character of wanting to
cure his father and take care of his brother, [Justin].
[Billy] needs to discuss with his therapist what he
believes his relationship with his family is.
(F) . . . [Billy] has a good relationship with his current
placement. His current placement wants to adopt
him, although they recognize he may not want to be
adopted. [Billy’s] current placement providers have
taken good care of him. [Billy’s] foster parents are
sensitive to his wishes and concerns regarding his
relationship with his parents. They are willing to
provide a permanent home for him and he wants to
stay in his current home on a permanent basis.
(G) Other relevant considerations:
1) It has been discussed with [Billy] the difference
between adoption and guardianship. [He]
reports that he understands some aspects
between the two.
2) Based on the evidence and testimony heard
throughout this case, pursuant to NCGS 48-3-
603(b)(2), it is not in [Billy’s] best interest for his
consent to be required for adoption.
The court separately concluded it was in Billy’s best interests that the parental rights
of respondent-mother and respondent-father be terminated.
We begin by addressing respondent-father’s claim that the trial court “fail[ed]
to safeguard [Billy’s] statutory due process rights” by providing Billy with notice of
the dispositional hearing and affording him the opportunity to attend the hearing
and testify on his own behalf, independent of his court-appointed guardian ad litem
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(GAL).6 Assuming arguendo that respondent-father has standing to assert Billy’s
procedural rights on appeal, we conclude he has failed to preserve this issue for our
review.
Under the North Carolina Rules of Appellate Procedure, “[i]n order to preserve
an issue for appellate review, a party must have presented to the trial court a timely
request, objection, or motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent.” N.C. R. App. P.
10(a)(1). In this case, neither respondent-father nor any other party presented the
trial court with the argument that Billy had the right to notice and to appear and
testify at the dispositional hearing under N.C.G.S. § 7B-1110(a). Therefore, this issue
was not preserved for appeal. See In re E.D., 372 N.C. 111, 116 (2019).
We recognize that “[w]hen a trial court acts contrary to a statutory mandate,
the defendant’s right to appeal is preserved despite the defendant’s failure to object
during trial.” State v. Braxton, 352 N.C. 158, 177 (2000) (quoting State v. Lawrence,
352 N.C. 1, 13 (2000)). However, while characterizing his claim as sounding in
“statutory due process,”7 respondent-father concedes there is no explicit statutory
6 Respondent-father also asks this Court to “consider” requiring the appointment of
counsel to represent the personal preferences of older juveniles, separate from the GAL
attorney advocate who advances the juvenile’s best interests. Because we conclude
respondent-father failed to preserve these issues for appellate review under N.C. R. App. P.
10(a)(1), we decline to consider this issue.
7 Respondent-father did not raise any issue of constitutional due process in the trial
court and thus may not raise such a claim for the first time on appeal. See State v. Gainey,
355 N.C. 73, 87 (2002).
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Opinion of the Court
grant of the procedural rights he would provide to Billy. The absence of clear statutory
language directed to the trial court compels our conclusion that respondent-father
was required to comply with Rule 10(a)(1) in order to raise this claim on appeal. See
In re E.D., 372 N.C. at 117 (“When a statute ‘is clearly mandatory, and its mandate
is directed to the trial court,’ the statute automatically preserves statutory violations
as issues for appellate review.” (quoting State v. Hucks, 323 N.C. 574, 579 (1988)).
As respondent-father observes, the statutes governing juvenile abuse, neglect,
and dependency proceedings provide certain procedural rights to juveniles who are
at least twelve years old in addition to the general right to representation by a GAL
under N.C.G.S. § 7B-601(a) (2019).8 Section 7B-906.1, for example, requires the clerk
of court to provide older juveniles with fifteen days’ notice of all permanency planning
hearings; it also requires the court to “consider information from . . . the juvenile”9 in
addition to the juvenile’s parents, caretaker, and GAL in determining “the needs of
the juvenile and the most appropriate disposition.” N.C.G.S. § 7B-960.1(b)–(c) (2019).
Similarly, juveniles twelve years of age or older are entitled to written notice of
hearings to review a voluntary foster care placement under N.C.G.S. § 7B-910(d)
8 Though not cited by respondent-father, N.C.G.S. § 7B-1108(b)–(d) (2019) governs the
appointment of a GAL to represent a juvenile in a termination of parental rights proceeding.
9 The statute governing the initial dispositional hearing in an abuse, neglect, or
dependency proceeding also provides “[t]he juvenile” with “the right to present evidence, and
. . . [to] advise the court concerning the disposition[.]” N.C.G.S. § 7B-901(a) (2019). Unlike
N.C.G.S. § 7B-906.1(c), however, the statute does not expressly distinguish the juvenile from
the GAL. Id.
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(2019), and all post-termination placement reviews under N.C.G.S. § 7B-908(b)(1)
(2019).
Conspicuously absent from N.C.G.S. § 7B-1110—the statute governing the
dispositional hearing in a termination of parental rights case—is any equivalent
language providing juveniles of any age with the right to notice or the right to attend
and testify at the hearing. See N.C.G.S. § 7B-1110(a); see also N.C.G.S. §§ 7B-1106(a)-
(a1), -1106.1(a) (2019) (addressing service of process or notice of a petition to
terminate parental rights or a motion to terminate parental rights filed in a pending
abuse, neglect, or dependency proceeding). Moreover, § 7B-1110 does expressly
provide juveniles twelve years of age or older with the right to be served with a copy
of the order terminating their parent’s rights. N.C.G.S. § 7B-1110(d) (2019). Our
General Assembly has thus demonstrated its ability to codify special protections for
older juveniles in the termination of parental rights statutes when it intends to do so.
Faced with the absence of favorable statutory language, respondent-father
infers from other sections of the Juvenile Code the General Assembly’s “clear
preference that the express wishes of older juveniles be communicated directly to the
trial court[,]” rather than through intermediaries such as the GAL. For purposes of
issue preservation under Rule 10(a)(1), it suffices to say that an unarticulated
legislative “preference” is not a clear statutory mandate directed to the trial court.
See generally In re E.D., 372 N.C. at 117 (limiting the statutory mandate exception
to Rule 10(a)(1)). Accordingly, we hold respondent-father failed to preserve for appeal
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Opinion of the Court
his arguments regarding Billy’s right to participate in the dispositional hearing under
N.C.G.S. § 7B-1110(a).
Respondent-father also claims the trial court abused its discretion by “ignoring
Billy’s expressed wishes not to be adopted and by finding that his consent should be
waived based on evidence that was neither relevant nor reliable.” We find no merit
to this assertion.
The trial court received evidence from both DSS and the GAL that Billy had
no desire to return to respondents’ home and wished to remain permanently with his
current foster parents, with whom he had resided since December 2016. The social
worker and GAL both testified that Billy had expressed a preference for a
guardianship arrangement with his current foster parents rather than adoption
“because of loyalty to his family” and a concern that, “if he’s adopted, the bond [with
his family] might be threatened[.]” Both witnesses emphasized the number of
conversations they had with Billy about the differences between guardianship and
adoption, as well as the difficulty Billy experienced in trying to understand the
differences.
The trial court’s findings accurately reflect the evidence on Billy’s position
with regard to being adopted by his foster parents. Furthermore, by finding that it
was not in Billy’s best interests to require his consent to adoption, and by citing the
applicable adoption statute, N.C.G.S. § 48-3-603(b)(2), the court demonstrated its
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consideration of Billy’s stated preference for guardianship in lieu of adoption.10
Although respondent-father contends the court did not give “proper weight” to Billy’s
preference, the weight assigned to particular evidence, and to the various
dispositional factors in N.C.G.S. § 7B-1110(a), is the sole province of the trier of fact.11
See In re A.J.T., 374 N.C. 504, 514 (2020) (“Respondents essentially ask this Court to
do something it lacks the authority to do—to reweigh the evidence and reach a
different conclusion than the trial court.”).
Respondent-father also claims the trial court “abused its discretion when it
found the likelihood of adoption was high and that termination of parental rights
would aid in the adoption.” Rather than challenge the evidentiary support for these
findings, respondent-father reiterates the point that Billy’s adoption would require
the trial court to disregard Billy’s stated wishes and waive the consent requirement
pursuant to N.C.G.S. § 48-3-603(b)(2). On their face, however, these findings evince
the court’s full awareness of the legal implications of Billy’s opposition to being
adopted and the court’s determination that it was contrary to Billy’s best interests to
10 Although respondent-father does not challenge the trial court’s finding on this basis,
we note the finding was not made in the context of a pending adoption proceeding under
Chapter 48 and is not binding in any future action for Billy’s adoption.
11 Respondent-father also asserts the trial court “ignored all the evidence from the
social worker and GAL that Billy clearly understood the difference between adoption and
guardianship.” However, the social worker testified that Billy had stated his preference for
guardianship, “but he’s also says [sic] he really doesn’t understand the difference.” Moreover,
the trial court’s findings credit Billy with understanding “some aspects” of the distinction
between guardianship and adoption. Because these findings are supported by competent
evidence, they are binding. In re E.F., 375 N.C. at 91.
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require his consent to adoption. Given the waiver mechanism in N.C.G.S. § 48-3-
603(b)(2), the evidence fully supports a finding that Billy is likely to be adopted. As a
matter of law, the termination of respondents’ parental rights would further that
goal.
Having considered each of respondent-father’s arguments, we hold the trial
court did not abuse its discretion in concluding it was in Billy’s best interests to
terminate respondent-father’s parental rights. The court’s findings address each of
the dispositional factors in N.C.G.S. § 7B-1110(a) and support its ultimate
determination that adoption will provide Billy with the most stable and enduring
permanent plan of care. See N.C.G.S. § 7B-1100(2) (2019). Accordingly, we affirm the
termination orders as to respondent-father.
AFFIRMED.
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