In re D.H. ( 2014 )

NO. COA13-1055
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
IN THE MATTER OF: Mecklenburg County
D.H., D.H., K.H. Nos. 09 JT 53-54,
09 JT 56
Appeal by respondent from order entered 27 June 2013 by Judge
Elizabeth T. Trosch in Mecklenburg County District Court. Heard
in the Court of Appeals 7 January 2014.
Twyla Hollingsworth-Richardson for Mecklenburg County
Department of Social Services, Youth & Family Services.
Poyner Spruill LLP, by Shannon E. Hoff, for guardian ad litem.
Peter Wood for respondent-mother.
DILLON, Judge.
Respondent mother appeals from an order terminating her
parental rights as to the juveniles D.H. (“Dora”), D.H. (“David”),
and K.H (“Kim”).1 For the reasons stated herein, we affirm.
In February of 2009, the Mecklenburg County Department of
Social Services (“DSS”) obtained non-secure custody of eleven-
year-old Kim, five-year-old David, and four-year-old Dora and
1 Pseudonyms are used throughout this opinion to protect the
identity of the juveniles. See N.C.R. App. P. 3.1(b).
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filed a petition alleging that they were neglected and dependent
juveniles. The petition’s allegations described respondent’s
inadequate supervision of the juveniles and substance abuse, as
well as her lack of appropriate alternative placement for the
children.
The district court entered adjudications of neglect and
dependency on 16 April 2009. On 8 February 2012, the court ceased
reunification efforts and changed the juveniles’ permanent plan to
adoption.
DSS filed a petition for termination of respondent’s parental
rights on 16 October 2012. The district court heard the petition
on 15 May 2013. In its order entered 27 June 2013, the district
court found grounds to terminate respondent’s parental rights
based on (1) neglect, (2) failure to make reasonable progress, (3)
failure to pay a reasonable portion of the cost of care, and (4)
abandonment. N.C. Gen. Stat. § 7B-1111(a)(1), (2), (3), (7)
(2011). At disposition, the court found and concluded that
terminating respondent’s parental rights was in the best interests
of each child. N.C. Gen. Stat. § 7B-1110(a) (2011). Respondent
filed timely notice of appeal from the termination order.2
2 The order also terminated the parental rights of the juveniles’
fathers, none of whom has pursued an appeal.
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The termination of parental rights statutes provide for a
two-stage termination proceeding: an adjudication stage and a
disposition stage. In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d
246, 252 (1984). In the adjudication stage, the trial court must
determine whether there exists one or more grounds for termination
of parental rights under N.C. Gen. Stat. § 7B-1111(a). Id. If
the trial court determines that at least one ground for termination
exists, it then proceeds to the disposition stage where it must
determine whether terminating the rights of the parent is in the
best interest of the child, in accordance with N.C. Gen. Stat. §
7B-1110(a). “‘We review the trial court’s decision to terminate
parental rights [(made at the disposition stage)] for abuse of
discretion.’” In re J.L.H., __ N.C. App. __, __, 741 S.E.2d 333,
337 (2012) (citation omitted). “The trial court ‘is subject to
reversal for abuse of discretion only upon a showing . . . that
the challenged actions are manifestly unsupported by reason.’”
Id. (citation omitted).
In this case, respondent does not challenge the adjudicatory
portion of the trial court’s order in which the court determined
that grounds existed to support termination of respondent’s
parental rights. Rather, respondent argues that the trial court
abused its discretion in the disposition portion of its order in
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which the court determined that termination of her parental rights
was in the children’s best interests. Specifically, respondent
argues that the trial court failed to made adequate findings of
fact on the dispositional factors set forth in N.C. Gen. Stat. §
7B-1110(a) (2011); and, further, that the court erred in
determining that termination of her parental rights was in the
juveniles’ best interests, given that two of the children are
unlikely to be adopted.
N.C. Gen. Stat. § 7B-1110(a) provides that in determining
whether terminating parental rights is in a child’s best interest,
“[t]he court may consider any evidence, including hearsay evidence
as defined in G.S. 8C-1, Rule 801, that the court finds relevant,
reliable and necessary to determine the best interests of the
juvenile.” Id. This statute further provides the following:
In each case, the court shall consider the
following criteria and make written findings
regarding the following that are relevant:
(1) The age of the juvenile.
(2) The likelihood of adoption of the
juvenile.
(3) Whether the termination of parental
rights will aid in the
accomplishment of the permanent
plan for the juvenile.
(4) The bond between the juvenile and
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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.
Id. We believe that the language of this stature requires the
trial court to “consider” all six of the listed factors, and that
any failure to do so would constitute an abuse of discretion. The
statute, as amended in 2011, also requires that the trial court
make certain written findings. In re J.L.H., __ N.C. App. at __,
741 S.E.2d at 338-39. We do not believe, however, that N.C. Gen.
Stat. § 7B-1110(a) requires the trial court to make written
findings with respect to all six factors; rather, as the plain
language of the statute indicates, the court must enter written
findings in its order concerning only those factors “that are
relevant.” Id. at __, 741 S.E.2d at 339 (holding that “[t]he
amended statute now explicitly requires that the trial court to
make written findings of fact on all relevant factors from N.C.
Gen. Stat. § 7B-1110(a)”).
Respondent argues that the trial court erred by not making
any written findings in connection with the factors set forth in
subparts (1), (2), (3) and (5) of N.C. Gen. Stat. § 7B-1110(a).
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Regarding subpart (1), which concerns the age of the children, we
agree with respondent that the trial court did not make any
findings as to this factor. Respondent argues that the age of
each child is a relevant factor because it bears on their
adoptability. However, respondent fails to cite any evidence in
the record indicating that age was raised as a relevant factor in
this case. Respondent instead focuses on the following testimony
of the DSS worker:
. . . I’m aware that there are families – or
there is at least one family that has
expressed an interest in [Dora].
[David], with the right supports in place, I
believe that we could find an adoptive home
for [David]. It will be a little bit more
difficult just given the . . . behavioral
issues that he’s exhibiting in placement and
in school.
And I don’t think that it would be a problem
to find — [Kim] is a very engageable, very
sweet young woman. I don’t think there would
be any problem in finding an adoptive home for
her. That does get a little bit more difficult
with age, but I think that she could certainly
engage with a family if the right family was
found for her.
(Emphasis added). We construe this testimony as indicative of the
DSS worker’s belief that a child’s age can be a relevant factor in
considering a child’s adoptability, but not as indicative of any
belief on her part that the children’s age was a relevant or
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influential factor in the present case. Since respondent fails to
point to any evidence in the record demonstrating that age was
placed in issue as a relevant factor, such that it had an impact
on the trial court’s decision, we do not believe that the trial
court erred in not making specific findings concerning the
children’s ages in its order.3
Next, respondent argues that the trial court erred by making
no findings with respect to the likelihood that the children would
be adopted, pursuant to N.C. Gen. Stat. § 7B-1110(a)(2). However,
we believe that the trial court made the requisite findings
concerning this factor. Specifically, the trial court made
findings with respect to each child’s current emotional state,
that each child’s emotional state would likely improve once the
uncertainty about their status was lifted, and that “[w]ith
3 In J.L.H., supra, the trial court did not to make findings
regarding the factors listed in subparts (3) and (4) of N.C. Gen.
Stat. § 7B-1110(a). In re J.L.H., __ N.C. App. at __, 741 S.E.2d
at 337. We determined that those factors were relevant and,
accordingly, remanded to the trial court to make findings as to
those factors. Id. at __, 741 S.E.2d at 338. In determining that
those factors were relevant, we noted that they had been placed in
issue by virtue of the evidence presented before the trial court;
and we specifically recounted the conflicting evidence concerning
one of the factors. Id. at __, 741 S.E.2d at 337-38. However,
unlike in J.L.H., in the case sub judice, though the ages of the
children were properly “considered,” respondent does not point to
any evidence indicating that the age of any child was placed in
issue such that this factor was “relevant.”
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continued therapeutic support[,] these children are likely to be
adoptable.” We believe that these findings are supported by the
evidence, including the testimonies of the DSS worker and Dr.
Kamillah McKissick. Accordingly, this argument is overruled.
Respondent next argues that the trial court erred by failing
to make findings pursuant to N.C. Gen. Stat. § 7B-1110(3),
concerning whether termination would aid in the accomplishment of
the permanent plan for the juveniles, which in this case is
adoption. We believe, however, that the trial court made
sufficient findings concerning this factor in its order.
Specifically, the trial court found as fact that the children have
“experienced significant emotional turmoil over the last four
years as a result of their impermanent status in foster care”;
that they would significantly improve once they are “free and able”
to engage in a relationship with a permanent care provider; that
“with therapeutic support[,] these children are likely to be
adoptable”; and that any attempts to encourage contact with their
mother would be “inconsistent with the children’s health, safety,
and need for a safe permanent home within a reasonable time.”
Accordingly, this argument is overruled.
Respondent next argues that the trial court erred by making
no findings concerning “[t]he quality of the relationship between
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the juvenile[s] and the proposed adoptive parent, guardian,
custodian, or other permanent placement[,]” pursuant to N.C. Gen.
Stat. § 7B-1110(5). Respondent contends that there was no evidence
concerning a potential adoptive parent for any of the children.
Indeed, the trial court found that Youth and Family Services “is
yet to find a single relative who has cooperated with efforts to
assess their home for placement and maintained a willingness to
provide a home for these children.” However, we have held that
the absence of an adoptive placement for a juvenile at the time of
the termination hearing is not a bar to terminating 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.”). Therefore, where there is currently no proposed
candidate to provide permanent placement, a trial court would not
be able to make any findings with regard to subpart (5), since
there would be no relationship bond to assess in its decision-
making process. In any event, the trial court did identify the
children’s maternal grandmother as a possible permanent placement
provider if she were able to qualify; and the trial court made a
number of findings regarding the relationship between her and the
children. Accordingly, this argument is overruled.
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Finally, respondent argues that the trial court abused its
discretion in terminating her parental rights because, she
contends, it was unlikely that two of the children would be
adopted. However, trial court found as fact that “[w]ith continued
therapeutic support[,] these children are likely to be adoptable.”
We believe that this finding is supported by the evidence,
including Dr. McKissick’s expert opinion and the testimony of the
DSS worker, supra. We have carefully reviewed the trial court’s
order and do not believe that its decision to terminate
respondent’s parental rights was “manifestly unsupported by
reason[,]” Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63
(1980). Accordingly, this argument is overruled; and we affirm
the order of the trial court.
AFFIRMED.
Judges McGEE and McCULLOUGH concur.