In re O.B. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-88
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
IN THE MATTER OF: McDowell County
O.B., K.B., R.B., D.S. Nos. 12 JT 42-45
Appeal by respondent from orders entered 29 October 2013 by
Judge Robert K. Martelle in McDowell County District Court.
Heard in the Court of Appeals 5 May 2014.
Megan N. Silver for petitioner-appellee McDowell County
Department of Social Services.
Parker Poe Adams & Bernstein LLP, by Ashley A. Edwards, and
Womble Carlyle Sandridge & Rice, LLP, by Hunter S. Edwards,
for petitioner-appellee guardian ad litem.
Ewing Law Firm, P.C., by Robert W. Ewing, for respondent-
appellant father.
DILLON, Judge.
Respondent-father appeals from the order terminating his
parental rights as to his minor children O.B., K.B., and R.B.
(collectively, “the juveniles”) in 12 JT 42-43, 45. He also
purports to appeal from the order in 12 JT 44 terminating the
parental rights of the parents of D.S., the juveniles’ half-
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brother. Respondent-father concedes, however, he is not a party
to the action in 12 JT 44 and, therefore, lacks standing to
appeal. Accordingly, we dismiss the appeal in 12 JT 44.
Because the district court did not abuse its discretion under
N.C. Gen. Stat. § 7B-1110 (2013) in determining that termination
of respondent-father’s parental rights was in the juveniles’
best interests, we affirm the order as it relates to 12 JT 42,
12 JT 43 and 12 JT 45.
In May 2012, the McDowell County Department of Social
Services (DSS) obtained non-secure custody of the juveniles and
filed petitions alleging that they were abused, neglected, and
dependent. The petitions cited the parents’ history of domestic
violence as well as their ongoing substance abuse, which
resulted in all three juveniles testing positive for amphetamine
and methamphetamine in May 2012.1 The district court adjudicated
the juveniles neglected on 11 September 2012. The court ceased
reunification efforts on 3 June 2013, and changed the juveniles’
permanent plan from reunification to adoption.
DSS filed motions for termination of respondent-father’s
parental rights on 17 June 2013. The district court heard the
motions on 15 August and 26 September 2013. In its order
1
R.B. also tested positive for amphetamine and methamphetamine at
the time of her premature birth in 2010.
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entered 29 October 2013, the district court found grounds to
terminate respondent-father’s parental rights based on (1)
neglect, (2) failure to make reasonable progress, and (3)
failure to pay a reasonable portion of the juveniles’ cost of
care. N.C. Gen. Stat. § 7B-1111(a)(1), (2), (3) (2013).2 At
disposition, the court found and concluded that terminating
respondent-father’s parental rights was in the best interests of
each child. N.C. Gen. Stat. § 7B-1110(a) (2013). Respondent-
father filed timely notice of appeal.3
On appeal, respondent-father claims that the trial court
abused its discretion in electing to terminate his parental
rights. He does not suggest that the court failed to consider
the dispositional factors set forth in N.C. Gen. Stat. § 7B-
1111(a) (2013). Rather, respondent-father contends that “there
was no need to terminate [his] parental rights[,]” because the
court could have placed the juveniles in the custody of their
maternal grandmother, Ms. B.
Once the district court has adjudicated the existence of
one or more grounds for termination of parental rights under
2
The court adjudicated grounds for termination of respondent-
mother’s parental rights on the same grounds, as well as for
willful abandonment under N.C. Gen. Stat. § 7B-1111(a)(7)
(2013).
3
Although the order also terminated the parental rights of
respondent-mother, she has not appealed.
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N.C. Gen. Stat. § 7B-1111(a), its selection of an appropriate
disposition consistent with the juvenile’s best interests is
discretionary. In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d
246, 252 (1984). In exercising this discretion, however, the
court must
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
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). A court’s dispositional findings
are binding on appeal insofar as they are supported by competent
evidence, see In re C.M., 183 N.C. App. 207, 212, 644 S.E.2d
588, 593 (2007), or not specifically challenged by the
appellant, see Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d
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729, 731 (1991). We find no merit to respondent-father’s
claim. The district court made detailed findings regarding Ms.
B.’s request to assume custody of the juveniles and explaining
why the court deemed termination of respondent-father’s parental
rights a superior option:
a. The minor children are four (4), three (3)
and two (2) years old.
. . . .
g. There is a substantial bond between the
minor children and their current caregivers.
The minor children have been placed with
their current caregivers for nearly seven
(7) months. The current caregivers wish to
adopt the minor children and their half-
sibling[, D.S]. The minor children are
thriving in this placement and their
behavior has improved.
. . . .
i. The likelihood the minor children will be
adopted is high.
j. The minor child [K.B.] and his half
sibling, [D.S.] receive therapy from
Caroline Sigmon, MSW, LCSW. She is a Trauma
Focused Clinician . . . [and] Child and
Family Therapist. . . . Ms. Sigmon
recommends the minor children remain in the
care of their prospective adoptive parents.
. . . .
n. Removal from the home of the prospective
adoptive parents after the traumatic events
the minor children have experienced would be
extremely detrimental to the minor
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children’s wellbeing and emotional and
cognitive development.
o. The Court considered [Ms. B.]’s desire to
have placement of the minor children. . . .
A home study was completed by [DSS] on Ms.
[B.]’s home on May 16, 2013 . . . .
p. The home study of Ms. [B.]’s home was
denied. Ms. [B] has been involved in this
case since the family was receiving in-
home/case management services in 2011. . .
. A meeting was held at [DSS] on May 29,
2012 (the day before the petition requesting
non-secure custody was filed) and Ms. [B.]
was not willing to serve as placement for
the minor children.
q. . . . Ms. [B.] did not wish to become a
licensed foster parent because she was
working second shift . . . and did not feel
she could serve as placement for the minor
children due to her work schedule and lack
of space (she had a two (2) bedroom home).
r. Ms. [B.] began working first shift in
summer 2012, but she did not request
placement of the minor children. . . .
s. Ms. [B.] waited over one year to have an
addition added on to her home to make room
for the minor children. . . . The
Respondent Father has building skills and
could have assisted Ms. [B.] with this
project long before May 2013. . . .
. . . .
u. Ms. [B.] only visited the minor children
five (5) to six (6) times while they have
been in foster care in the last sixteen (16)
months. She has never requested additional
visitation . . . .
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. . . .
w. When Ms. [B]. finally formally requested
the minor children be placed with her in May
2013, she stated she was shocked when she
learned in court at the permanency planning
hearing in April 2013 that the Respondent
Father had not done what was expected of
him. She attended a [Child and Family Team
meeting] on January 4, 2013 where the
Respondent Father’s lack of progress on his
case plan was discussed. Ms. [B.] did not
request placement of the minor children but
has been fully aware the Respondent Father
was not complying with his case plan . . . .
. . . .
z. As of the date of this hearing, the Court
does not know whether Ms. [B] can properly
care for the minor children and she has done
too little, too late to show the Court she
is willing and able to care for the minor
children. The minor children are thriving in
their current placement and it would not be
in their best interest to remove them from
their current placement.
aa. . . . [I]f the Respondent Parents’
rights are not terminated, the minor
children will likely be separated from
[D.S., who] has expressed the importance of
living with his brothers and sister to Ms.
Sigmon . . . .
bb. Ms. [B.] is not related to the minor
children’s half-sibling, [D.S.] . . . . The
prospective adoptive parents wish to adopt
all four (4) minor children. Separation
would be detrimental to the minor children.
The court also incorporated by reference the report of the
juveniles’ guardian ad litem, who agreed with DSS that
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terminating the rights of respondent-father was in the
juveniles’ best interests. Respondent-father does not except to
the court’s findings; rather, he merely disagrees with its
assessment of the juveniles’ best interests. Because we find no
abuse of discretion by the court, we affirm the termination
order as to 12 JT 42-43, 45. We dismiss the appeal as to 12 JT
44.
AFFIRMED in part, DISMISSED in part.
Judges BRYANT and STEPHENS concur.
Report per Rule 30(e).