In re H.S. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA14-292
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
IN THE MATTER OF:
H.S., J.S., P.S., III Swain County
Nos. 10 JT 28-30
Appeal by respondents from order entered 17 December 2013
by Judge Monica Leslie in Swain County District Court. Heard in
the Court of Appeals 28 July 2014.
Justin B. Greene for petitioner-appellee Swain County
Department of Social Services.
Richard Croutharmel for respondent-appellant mother.
Peter Wood for respondent-appellant father.
Parker Poe Adams & Bernstein LLP, by J. William Porter, for
guardian ad litem.
HUNTER, Robert C., Judge.
Respondents, the mother and father of H.S., J.S., and P.S.
(“the juveniles”), appeal from an order terminating their
parental rights. After careful review, we affirm.
Background
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The Swain County Department of Social Services (“DSS”)
first became involved with this family on 8 March 2010 when DSS
received a child protective services report alleging that the
juveniles came to school with black eyes and bruises.
Respondents voluntarily placed the juveniles in a kinship
placement with their paternal aunt until June 2010, at which
point they returned to live with respondent mother. Respondents
entered into a family services case plan which required them to
have mental health assessments, parenting classes, anger
management counseling, refrain from corporal punishment,
transport the juveniles to their counseling appointments, and
maintain adequate housing, transportation, and financial
support.
On 3 September 2010, DSS filed petitions alleging that the
juveniles were neglected due to the respondents’ non-compliance
with the case plan, including a lack of adequate housing and
financial support. On 18 April 2011, the trial court
adjudicated the juveniles as neglected. The disposition hearing
was held on 13 July 2011. The children were placed in the
custody of DSS, and respondents were ordered to comply with
their case plans.
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At the first permanency planning hearing on 10 January
2012, the trial court found that the juveniles should remain in
DSS custody, and the case plan should remain reunification. At
the 27 August 2012 permanency planning hearing due to the
respondents’ non-compliance with the case plan, the court ceased
reunification efforts and changed the permanent plan to a
concurrent plan of guardianship or adoption.
On 11 March 2013, DSS filed termination of parental rights
(TPR) petitions. The petitions alleged that respondents (1)
neglected the juveniles, (2) willfully left them in placement
outside the home for more than twelve months without showing
that conditions were corrected, (3) left the juveniles in
placement for more than six months without paying a reasonable
portion of the cost of care for the juveniles, and (4) as to
father only, did not establish paternity. See N.C. Gen. Stat. §
7B-1111(2013). On 17 December 2013, the trial court entered an
order terminating the respondents’ parental rights pursuant to
N.C. Gen. Stat. § 7B-1111(a)(1) and (2) as to both respondents,
and also (a)(3) as to respondent father only. See N.C. Gen.
Stat. § 7B-1111(a)(1), (2), and (3)(2013). Respondents appeal.
Arguments
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Respondents argue that the trial court erred in terminating
their parental rights since it did not have subject matter
jurisdiction because it had not properly determined whether the
juveniles were subject to the Indian Child Welfare Act (“ICWA”).
We disagree.
“Whether a trial court has subject-matter jurisdiction is a
question of law, reviewed de novo on appeal.” McKoy v. McKoy,
202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). The
district court has “exclusive, original jurisdiction over any
case involving a juvenile who is alleged to be abused,
neglected, or dependent” and over “[p]roceedings to terminate
parental rights.” N.C. Gen. Stat. § 7B-200(a) and (a)(4)(2013).
However, the ICWA allocates jurisdiction between tribal and
state courts as follows:
(b) . . . In any State court proceeding for the
foster care placement of, or termination of
parental rights to, an Indian child not domiciled
or residing within the reservation of the Indian
child's tribe, the court, in the absence of good
cause to the contrary, shall transfer such
proceeding to the jurisdiction of the tribe,
absent objection by either parent, upon the
petition of either parent or the Indian custodian
or the Indian child's tribe: Provided, That such
transfer shall be subject to declination by the
tribal court of such tribe.
(c) . . . In any State court proceeding for the
foster care placement of, or termination of
parental rights to, an Indian child, the Indian
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custodian of the child and the Indian child's
tribe shall have a right to intervene at any
point in the proceeding.
25 U.S.C. § 1911 (2012). An “Indian child” is defined as:
any unmarried person who is under age eighteen
and is either (a) a member of an Indian tribe or
(b) is eligible for membership in an Indian tribe
and is the biological child of a member of an
Indian Tribe[.]
25 U.S.C. § 1903(4) (2012).
Here, the applicability of the ICWA was raised when one of
the juveniles told his counselor that he was proud of his Indian
heritage. The trial court ordered DSS to:
send an ICWA notice to the Bureau of Indian
Affairs by July 14, 2013, to place the Bureau on
notice in the event that any of the juveniles are
eligible for enrollment in any State or Federally
recognized Tribe(s). To the extent that any of
the juveniles are eligible for enrollment in any
State or Federal recognized Tribe(s), all of the
ICWA statutes must be complied with.
DSS sent a standard letter of notice to the Bureau of Indian
Affairs (BIA) and did not receive a response. The juveniles’
guardian ad litem met with respondent father who stated that he
was not Native American, and respondent mother who stated that
she was part Cherokee. He met with the juveniles’ maternal
grandmother who stated that she and her family were associated
with the Eastern Band of Cherokee Indians. The guardian ad
litem gave the Eastern Band of Cherokee Indians’ enrollment
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office the names of the juveniles’ parents, maternal
grandparents, and maternal great grandparents. None of them
were enrolled members.
At a pre-trial hearing, respondent mother moved to dismiss
the TPR petitions stating that DSS had not complied with the
trial court’s order to investigate the ICWA’s applicability.
Respondent mother testified that she was not a member of or
associated with any specific tribe and had no specific knowledge
to that effect. Respondent father testified that he was not a
member of any Indian tribe. The trial court denied the motion.
The trial court found that “respondent mother did not meet her
burden of showing that the Indian Child Welfare Act applied in
this matter[.]”
Respondents contend that DSS “assumed an affirmative duty”
regarding the ICWA’s applicability when the trial court ordered
them to investigate. Respondents cite In re A.R. in support of
their argument that the trial court’s order for DSS to
investigate shows that it “kn[ew] or ha[d] reason to know that
an Indian child [was] involved[.]” In re A.R., ___ N.C. App.
___, ___, 742 S.E.2d 629, 633 (2013). They argue further that
DSS did not meet its burden because it failed to comply with the
trial court’s order since it only sent notice to the regional
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BIA office, did not investigate other tribes, and did not offer
evidence of correspondence in the record.
In determining whether the ICWA is applicable, “[t]he
burden is on the party invoking the Act to show that its
provisions are applicable to the case at issue, through
documentation or perhaps testimony from a tribe representative.”
In re A.R., ___ N.C. App. at ___, 742 S.E.2d at 633. The party
must show “proof . . . of her tribal membership” or the tribe
must respond. In re C.P., 181 N.C. App. 698, 701, 641 S.E.2d
13, 15 (2007). The “equivocal testimony of the party seeking to
invoke the Act, standing alone, is insufficient to meet this
burden.” In re Williams, 149 N.C. App. 951, 957, 563 S.E.2d
202, 205 (2002).
We believe the present case is distinguishable from In re
A.R. In In re A.R., this Court remanded the case back to the
trial court because although the respondents had identified a
specific tribal heritage, there had been no further
investigation. This Court held that:
The mere belief by respondent-father as to a
family connection to a registered Native American
group would normally not meet the burden of
triggering the ICWA notification, see id., but in
this case, based upon the evidence before it, the
trial court specifically found as fact that [Wake
County Human Services] should conduct an
investigation.
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In re A.R., ___ N.C. App. at ___, 742 S.E.2d at 633.
Here, the trial court ordered DSS to complete an
investigation and DSS complied. However, there was no response
from the BIA, and the specific tribe that respondent mother
claimed heritage to did not identify any enrolled family
members. There is no evidence to support respondent mother’s
assertion of Indian heritage. Respondents provided no evidence
other than respondent mother’s “bare assertions” that the ICWA
should apply. In re C. P., 181 N.C. App. at 699, 641 S.E.2d at
14. Verbal testimony that her grandfather “had Indian in him”
is “insufficient.” See In re Williams, 149 N.C. App. at 957,
563 S.E.2d at 205. Even though respondent mother initially
identified a tribe and DSS complied with a court order to send
notice to the BIA, respondents still had the burden of proving
that the ICWA was applicable. In re C.P., 181 N.C. App. at 701-
03, 641 S.E.2d at 15-17. Respondents’ failure to provide any
evidence that the ICWA was applicable was sufficient grounds for
the trial court to hold that it was not applicable. In re
Williams, 149 N.C. App at 957, 563 S.E.2d at 205. Therefore,
the trial court did not err in finding that respondent mother
had not met her burden of showing that the ICWA did apply.
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Respondents next argue that the trial court abused its
discretion in terminating respondents’ parental rights because
the juveniles are not likely to be adopted. Respondent father
argues specifically that J.S. is unadoptable due to his
behavioral problems and because he is not currently placed in an
adoptive home. He concedes that P.S. and H.S. live in a
potential adoptive placement and that their behavioral problems
are manageable. Respondent mother argues that all three boys
are not likely to be adopted due to their behavioral problems
and the fact that they are living in therapeutic foster homes.
We are not persuaded.
Once statutory grounds for termination have been
established, the trial court is required to use its own
discretion to “determine whether terminating the parent’s rights
is in the juvenile’s best interest.” N.C. Gen. Stat. § 7B-
1110(a) (2013); In re Carr, 116 N.C. App. 403, 407, 448 S.E.2d
299, 301 (1994). When determining whether it is in the
juvenile’s best interest to terminate the parent’s rights, a
trial court is required to make written findings regarding these
factors:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
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(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. Gen. Stat. § 7B-1110(a). “We review the trial court’s
decision to terminate parental rights for abuse of discretion.”
In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602
(2002). “An abuse of discretion occurs when the trial court’s
ruling is so arbitrary that it could not have been the result of
a reasoned decision.” Chicora Country Club, Inc. v. Town of
Erwin, 128 N.C. App 101, 109, 493 S.E.2d 797, 802 (1997)
(internal quotation marks omitted).
In its disposition order, the trial court made the
following pertinent findings of fact:
5. That prior to the visits restarting in
September of 2013, all three of the
juveniles had made significant progress in
therapy and their behavior at home and at
school had improved.
6. . . . Once visits resumed with the
respondent father and the possibility of
visits with the respondent mother were
mentioned, the juveniles regressed to their
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former negative behaviors.
. . . .
13. That since the visits were stopped with
the respondent father, [J.S.] is stabilizing
and his violent and angry behaviors have
again decreased. His behaviors are more
manageable and his grades have improved
after dropping during the time of the
visits.
14. That [P.S.] and [H.S.] also
demonstrated an increase in disruptive and
aggressive behaviors . . . during the time
they were visiting with the respondent
father.
. . . .
20. That both [P.S.] and [H.S]’s grades
suffered during that time period as well,
however since the visitation has stopped . .
. negative behavior has decreased and their
grades have also improved.
21. That the visits with the respondent
father and the potential visits with the
respondent mother triggered these aggressive
and violent behaviors for the three boys,
and were detrimental to the mental health
and well-being of the three boys.
22. That the juveniles’ counselor, Mr.
O’Neal, believes . . . the behavior of all
three boys will continue to improve with
continued therapy and staying in the
structure of therapeutic foster care for the
time being.
23. That . . . not one of the boys has
expressed a desire to see their biological
parents or . . . expressed missing their
biological parents or their biological
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family.
24. That [P.S] is 11 years old, [J.S.] is 10
years old, and [H.S.] is 8 years old. The
juveniles are still young enough to be
successfully adopted.
25. That while all three juveniles have
mental health and behavioral issues, all
three have demonstrated that with the proper
care and therapy the behaviors can improve
as they have done over the past year and a
half.
26. That since their time in therapeutic
foster care, they have become active
participants in their families and their
behavior problems at school have
significantly decreased.
27. That the termination of the parental
rights of the respondent parents will aid in
the accomplishment of the permanent plan for
the juveniles in that it would legally free
the juveniles for adoption.
28. That a termination of the parental
rights of the respondent parents would
further aid in the permanent plan for the
juveniles by allowing the juveniles to move
forward in their therapy without the worry
or concern about Court proceedings and/or
that they may have to visit with or return
to live with either of the respondent
parents.
29. That an improvement in the juveniles’
behaviors and ability to bond with and
attach to a pre-adoptive family will aid in
the accomplishment of the permanent plan.
30. . . . All three of the juveniles have
expressed that they have no desire to live
with either of their biological parents.
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. . . .
32. That [P.S.] and [H.S.] are very bonded
to their foster parents, the [L. family].
Their foster parents are also bonded to
them. . . .
33. That the [L. family] are a potential
pre-adoptive placement for the juveniles,
but they have not decided whether or not
they are willing to adopt [P.S.] and [H.S.].
. . .
34. That [J.S.] is bonded to his current
foster placement, the [W.] family. [J.S.]
trusts the [W. family] and feels safe with
them. They are a potential pre-adoptive
placement and have not yet decided whether
or not they are willing to adopt [J.S.]. . .
.
35. That the juveniles by their attachments
and bond formed to their foster families
have demonstrated that they have the ability
to form an attachment to potential adoptive
parents, under appropriate circumstances.
36. That although more care will have to be
put into finding an adoptive home for these
juveniles due to their behavioral issues,
these juveniles are adoptable.
37. That having found previously that two
grounds exist for the termination of
parental rights of the respondent mother and
three grounds for the respondent father by
clear, cogent and convincing evidence it is
in the best interest of each of these three
children that the parental rights of each of
the respondent parents be terminated.
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Respondent father argues that dispositional findings of fact 27,
28, 29, 34, and 37 are not supported by evidence. Respondent
mother argues that dispositional findings of fact numbers 33,
34, and 36 are not supported by evidence. We disagree.
Findings of fact 27, 28, 29, and 37 are supported by the
testimony of the juveniles’ long-term counselor whom the court
considered to be an expert witness. It was his opinion that the
juveniles suffered emotional and physical abuse from respondents
and that they had no desire to return to them. He also
testified that these were the most damaged juveniles he had
seen, and if they were reunited with respondents their behaviors
would regress even further. His October 2013 report to the
court indicated that after family visitation began, the progress
all three juveniles had made in therapy had been “forfeited.”
This demonstrates that the juveniles neither want nor are
emotionally or psychologically stable enough to live with either
respondent, and that the permanency of termination will help to
stabilize the juveniles’ severe behaviors so that they are more
likely to be adopted.
Findings of fact 33 and 34 are supported by the testimony
of both foster parents. J.S. has been placed with the W. family
for a year, and H.S. and P.S. with the L. family for a year and
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a half. Both placements are familiar with the juveniles’
behaviors and highly trained to manage them.
With respect to finding 36, the DSS case worker who had
worked with the juveniles for two and a half years stated that
they were adoptable because they had shown through their bond to
their foster parents that they are capable of attachment. H.S.
and P.S. have only had one foster placement, and J.S. has had
two. The juveniles are active in their placements and are
learning how to behave in a healthy family environment. Since
the juveniles were placed in their respective foster homes,
their behaviors have improved. The juveniles’ therapist
testified that when the juveniles do not visit with respondents
they make significant progress in their foster homes.
Given the substantial evidence supporting these findings,
we cannot agree that the trial court’s best interest
determination was “manifestly unsupported by reason.” In re
A.R.H.B., 186 N.C. App. 211, 218, 651 S.E.2d 247, 253 (2007).
Furthermore, the trial court is not required to find that a
child is adoptable before terminating parental rights. See In
re Norris, 65 N.C. App. 269, 275, 310 S.E.2d 25, 29 (1983). The
trial court did not abuse its discretion in concluding that it
was in the juveniles’ best interest to terminate the
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respondents’ parental rights. Accordingly, we affirm the trial
court’s order terminating respondents’ parental rights.
Conclusion
Based on the foregoing reasons, we affirm the trial court’s
order terminating respondents’ parental rights.
AFFIRMED.
Judges DILLON and DAVIS concur.
Report per Rule 30(e).