In re: B.M.S. ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-701
Filed 18 April 2023
Gaston County, No. 20-JT-65
In re:
B.M.S.
Appeal by Respondent-Mother from order entered 9 June 2022 by Judge John
K. Greenlee in Gaston County District Court. Heard in the Court of Appeals 22
March 2023.
Elizabeth Myrick Boone for Petitioner-Appellee Gaston County Department of
Health and Human Services.
Michelle FormyDuval Lynch for Guardian ad Litem.
Kimberly Connor Benton for Respondent-Appellant Mother.
COLLINS, Judge.
Respondent-Mother appeals from the trial court’s order terminating her
parental rights to her minor child based upon neglect and willfully leaving the child
in foster care or placement outside the home for more than 12 months without
showing that reasonable progress under the circumstances has been made in
correcting those conditions which led to the removal of the child. Mother argues that
the trial court reversibly erred by concluding that it was in the child’s best interests
to terminate Mother’s parental rights. We affirm.
IN RE: B.M.S.
Opinion of the Court
I. Background
Mother is the biological parent of Bella,1 who was born on 7 November 2019.
The day after Bella’s birth, while Mother and Bella were stilled hospitalized, Gaston
County Department of Health and Human Services (“DSS”) received a report from
the hospital that Mother had been seen hiding drug paraphernalia at the hospital
and was found unresponsive on the floor. Mother admitted that she was hiding a pill
bottle, a cigarette, a vape pen, and a syringe without a needle, and stated that she
had taken a Xanax. Mother also admitted to using heroin and other prescription
drugs, and she tested positive for benzodiazepines, barbiturates, and opiates.
Hospital staff observed that Bella was experiencing withdrawal symptoms, in the
form of jitters and tremors, and Bella required morphine to control the withdrawal
symptoms. The hospital staff reported that Mother did not show an interest in Bella,
did not want to feed her, and threatened to leave Bella alone in the hospital if the
staff tried to place Bella in another room. Following the hospital’s report, DSS
initiated a safety plan between Mother and Bella; DSS placed Bella in a temporary
safety foster home and required that Mother have no unsupervised contact with
Bella. Mother further agreed to engage in substance abuse treatment and mental
health services.
On 26 February 2020, DSS filed a petition alleging that Bella was neglected
1 We use a pseudonym to protect the identity of the minor child. See N.C. R. App. P. 42.
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based upon Mother’s substance abuse. Despite agreeing to engage in substance abuse
treatment and mental health services, Mother only went for one substance abuse
assessment at Bridging the Gap, a treatment program. During that assessment,
Mother admitted to continued use of illegal substances and admitted that she
continued to use heroin while also taking prescription methadone. Bridging the Gap
reported that they could not work with Mother until she completed a detoxification
program and inpatient treatment, but Mother refused either treatment option.
Mother also failed to comply with two requested drug screens and then tested positive
for drugs during two other requested drug screens.
Bella was adjudicated neglected on 15 September 2020 based upon Mother’s
substance abuse. Mother was ordered to contact DSS to enter into a new case plan;
comply with the terms of her case plan; refrain from using or abusing illegal or
mindaltering substances; complete a mental health and substance abuse assessment
and comply with the treatment recommendations; submit to drug testing as
requested by DSS and have negative results; enroll in and complete parenting
classes; obtain and maintain safe, appropriate, and stable housing; attend visits with
Bella and demonstrate effective parenting skills; sign all necessary consents for DSS;
refrain from criminal activity; and obtain and maintain employment and provide for
Bella’s needs.
From October 2020 through August 2021, Mother made some progress on her
case plan as she enrolled in substance abuse treatment classes and attended a little
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over half of the recommended treatment hours. Mother also enrolled in and attended
some parenting classes and attended some of the scheduled visitation with Bella.
However, Mother failed to make progress on much of her case plan: she was
unsuccessfully discharged from her substance abuse treatment program; attended
only a few of the drug screens by DSS, and tested positive during the drug screens
that she attended; did not engage in mental health treatment; and did not provide
DSS with proof of employment or income.
On 25 August 2021, DSS filed a petition to terminate Mother’s parental rights,
alleging that Mother neglected Bella, that Bella would be neglected if returned to her
care, and that Mother willfully left Bella in foster care for more than 12 months
without showing to the trial court that reasonable progress had been made in
correcting the conditions that led to Bella’s removal from Mother’s care. At a
permanency planning hearing in September, the trial court found that Mother still
had not complied with mental health treatment, substance abuse treatment,
medication management, or requested drug screens. It also found that Mother had
not re-engaged in substance abuse treatment after being unsuccessfully discharged
from her first treatment program. At subsequent permanency planning hearings, the
trial court found that Mother continued not to comply with mental health or
substance abuse treatment, did not comply with drug screens, did not obtain or show
proof of employment, and failed to provide DSS with updates on her case plan
progress.
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Opinion of the Court
The matter came on for hearing on 9 May 2022. The trial court found that
grounds existed to terminate Mother’s rights pursuant to N.C. Gen. Stat. §
7B-1111(a)(1), neglect, and N.C. Gen. Stat. § 7B-1111(a)(2), willfully leaving Bella in
foster care or placement outside the home for more than 12 months while failing to
make reasonable progress in correcting the conditions which led to Bella’s removal.
The trial court then concluded that it was in Bella’s best interests for Mother’s rights
to be terminated. Mother filed a timely notice of appeal on 21 June 2022.
II. Discussion
Mother argues that the trial court committed reversible error by concluding
that it was in Bella’s best interests to terminate Mother’s parental rights. Mother
does not challenge the adjudicatory portion of the trial court’s ruling and this issue is
not before us. See In re A.J.T., 374 N.C. 504, 508, 843 S.E.2d 192, 195 (2020).
A. Standard of Review
“Termination of parental rights involves a two-stage process.” In re L.H., 210
N.C. App. 355, 362, 708 S.E.2d 191, 196 (2011) (citation omitted). “At the
adjudicatory stage, the petitioner bears the burden of proving by clear, cogent, and
convincing evidence the existence of one or more grounds for termination under
section 7B-1111(a) of our General Statutes.” In re D.C., 378 N.C. 556, 559, 862 S.E.2d
614, 616 (2021) (quotation marks and citation omitted). “If the petitioner meets its
evidentiary burden with respect to a statutory ground and the trial court concludes
that the parent’s rights may be terminated, then the matter proceeds to the
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Opinion of the Court
disposition phase, at which the trial court determines whether termination is in the
best interests of the child.” In re H.N.D., 265 N.C. App. 10, 13, 827 S.E.2d 329, 332-33
(2019) (citation omitted). If, in its discretion, the trial court determines that it is in
the child’s best interests, the trial court may then terminate the parent’s rights. In
re Howell, 161 N.C. App. 650, 656, 589 S.E.2d 157, 161 (2003).
This Court reviews the “trial court’s dispositional findings of fact . . . under a
‘competent evidence’ standard.” In re K.N.K., 374 N.C. 50, 57, 839 S.E.2d 735, 740
(2020) (citations omitted). A trial court’s findings of fact are binding “where there is
some evidence to support those findings, even though evidence might sustain findings
to the contrary.” In re J.C.J., 381 N.C. 783, 795, 874 S.E.2d 888, 897 (2022) (citation
omitted). We review a trial court’s assessment of a juvenile’s best interest at the
dispositional stage for abuse of discretion, reversing only where the decision is
“manifestly unsupported by reason or is so arbitrary that it could not have been the
result of a reasoned decision.” In re A.R.A., 373 N.C. 190, 199, 835 S.E.2d 417, 423
(2019) (quotation marks and citations omitted).
B. Disposition
Mother challenges the trial court’s dispositional findings of fact 1, 6, 7, 8, 9,
and 16 as being unsupported by competent evidence.
At the dispositional hearing, the trial court may consider
written reports or other evidence concerning the needs of
the juvenile. . . . The Court may consider any evidence,
including hearsay evidence as defined in G.S. 8C-1, Rule
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801, including testimony or evidence from any person who
is not a party, that the court finds to be relevant, reliable,
and necessary to determine the needs of the juvenile and
the most appropriate disposition.
N.C. Gen. Stat. § 7B-901(a) (2022). The trial court may also incorporate into its
findings information from written reports, as well as findings made at adjudication.
In re K.W., 272 N.C. App. 487, 494, 846 S.E.2d 584, 589 (2020).
1. Dispositional Finding of Fact 1
The trial court incorporated all of its findings from the adjudication in the
dispositional order’s finding of fact 1, which provides: “The Court hereby restates and
incorporates its Adjudicatory Findings of Fact as if fully set out in this portion of the
Order.” However, Mother specifically explains that she “only challenges findings of
fact 31 and 34 from the adjudicatory portion of the order” as being unsupported by
evidence. Adjudicatory finding of fact 31 states that “Respondent/mother has failed
to obtain stable and appropriate housing” and the ajudicatory finding of fact 34 states
that “Respondent/mother has failed to consistently stay in contact with the
Department.”
We agree with Mother that there does not appear to be record or testimonial
support for finding of fact 31. Our review of the evidence shows that, on multiple
occasions, DSS reports noted that Mother failed to provide them with proof of stable
housing. Additionally, when asked if Mother had provided any proof of maintaining
safe and appropriate housing for her and Bella throughout the entire process,
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Opinion of the Court
Covington, a DSS social worker, responded, “She has not.” However, the trial court’s
finding did not speak to whether Mother provided DSS with proof of stable housing;
it found that Mother failed to obtain stable and appropriate housing. Mother testified
that she lived with her mom at the same address for 3.5 years and a DSS report shows
that DSS was aware that Mother was residing at that address. It is unclear whether
or not DSS found the housing acceptable, but the testimonial evidence shows that
both Mother and DSS knew that Mother was living at the maternal grandmother’s
home. The record and testimonial evidence thus do not support that Mother failed to
obtain stable and appropriate housing.
Record and testimonial evidence supports finding of fact 34. A social worker
testified at trial that Mother attended only approximately 40% of drug screenings
requested by DSS and that her visitation with Bella was not consistent. Mother
testified that she stopped attending the requested drug screens and stopped providing
DSS with requested employment information in July 2021. Record evidence shows
that DSS attempted multiple times to obtain an update on Mother’s substance abuse
issues, housing status, and employment status, and that Mother did not update DSS
with that information. This competent evidence supports that Mother failed to
consistently stay in contact with DSS. In re K.N.K., 374 N.C. at 57, 839 S.E.2d at
740.
2. Dispositional Finding of Fact 6
Finding of fact 6 states: “A permanent plan of care can only be accomplished
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Opinion of the Court
by the severing of the relationship between the juvenile and the Respondent/Mother
by termination of parental rights of the Respondent/Mother.”
The unchallenged findings of fact and testimony from a DSS social worker
support finding of fact 6. The trial court found that “[t]he termination of the parental
rights of [Mother] will aid in the accomplishment of the permanent plan [of adoption]
for the juvenile” and that Bella “deserves safety, security, emotional support and a
permanent home.” Additionally, Covington testified that the permanent plan for
Bella was adoption and that termination of Mother’s parental rights would be both
helpful and necessary in accomplishing that plan. This competent evidence supports
that the permanent plan of Bella’s adoption could only be accomplished by
terminating Mother’s rights. In re K.N.K., 374 N.C. at 57, 839 S.E.2d at 740.
3. Dispositional Findings of Fact 7 & 8
Finding of fact 7 states that “the juvenile has a bond with Respondent/Mother.
The bond has diminished, as Respondent/Mother has only been able to visit the
juvenile once a month due to the lack of Respondent/Mother’s progress on her case
plan.” Finding of fact 8 states that “[t]he juvenile knows who Respondent/mother is
and is excited to visit Respondent/Mother; however, the juvenile does not get upset
or emotional when visitation with Respondent/Mother is over or if
Respondent/mother misses a visit.”
Testimony from Covington supports findings of fact 7 and 8. Covington
testified that: Bella had “a parental bond” with Mother; Bella saw Mother for only
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one hour per month during supervised visits; Mother was not consistent with her
visits; and Mother was previously allowed more visitation time but her time was
decreased due to her lack of progress with her case plan. Covington further testified
that while Bella gets excited to see her Mother during visits, she has gone more than
a month without seeing Mother and that there were no issues of sadness or negative
behaviors as a result of the missed visits; Bella just “continues on.” Record evidence
and the trial court’s finding of fact 33 support that Mother missed visits with Bella.
This competent evidence supports that Bella has a diminished bond with Mother and
support the remainder of findings of fact 7 and 8. See In re H.B., 877 S.E.2d 128, 139
(N.C. Ct. App. 2022) (affirming a finding that a bond did not exist between parent
and child where the parent did not care for the child and failed to visit consistently).
4. Dispositional Finding of Fact 9
Finding of fact 9 states: “That the conduct of Respondent/Mother has been such
as to demonstrate that she will not promote the juvenile’s physical or emotional
well-being.”
The following unchallenged adjudicatory findings, incorporated into
dispositional finding of fact 1, support that Mother will not promote Bella’s physical
and emotional well-being. The trial court found that:
17. The juvenile was adjudicated to be a “Neglected”
juvenile within the meaning of G.S. 7B-101(15) by Order
entered August 18, 2020. . . .
....
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IN RE: B.M.S.
Opinion of the Court
20. The juvenile [Bella] is thirty (30) months of age. The
juvenile has been in the custody of the Department for
approximately twenty-seven (27) months.
21. The Court has regularly reviewed Respondent
Mother’s case progress toward regaining custody of the
juvenile, and the Court has never concluded at any hearing
that Respondent/Mother has made reasonable progress to
warrant returning custody to Respondent/Mother.
22. Respondent/Mother has failed to correct the conditions
that led to the removal of the juvenile from her custody,
such that the neglect would continue if the juvenile were
returned to Respondent/Mother’s care. The neglect has
continued through the date of this hearing and is not due
to the poverty of the Respondent/Mother.
23. Respondent/Mother entered into a case plan with the
Department; however, failed to complete said case plan.
....
25. Respondent/mother has submitted to drug screens and
has tested positive for illegal substances on most of her
drug screens. . . .
26. Respondent/mother provided sworn testimony that she
has had a substance abuse addiction for eight (8) years
with a $400.00 a day habit. Respondent/mother also
testified that she did not test positive for heroin on her drug
screens for Department; however, she used heroin when
she relapsed in July 2021.
....
28. Respondent/mother testified under oath that she last
used heroin two and a half weeks ago.
29. Respondent/mother has obtained a dual assessment;
however, has not completed the recommended services.
Respondent/mother enrolled in treatment . . . in November
2020; however, did not complete treatment and was
discharged from program. Respondent/mother enrolled in
treatment at Beaty Recovery Services; however, did not
complete the individual therapy and was discharged from
the program in July of 2021.
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....
32. Respondent/Mother has found some employment while
the juvenile has been in the custody of the Department;
however, Respondent/Mother has failed to maintain
employment or sufficient financial resources to support the
juvenile.
33. Respondent/mother attended some visits with the
juvenile.
....
35. Respondent/Mother has failed to contribute to the
financial support of the juvenile through regular child
support contributions and has failed to provide for the basic
needs of the juvenile.
36. Since the juvenile has been in foster care,
Respondent/Mother has failed to demonstrate the ability to
meet the juvenile’s basic needs for food, shelter, clothing,
education, and health care.
37. Respondent/Mother has failed to demonstrate the
ability to parent and protect the juvenile.
38. The Court finds that there were multiple items on
Respondent/Mother’s case plan to be completed and she
has completed parenting classes and completed several
mental health and substance abuse assessments; however,
never completed mental health or substance abuse
treatment.
39. The Court further finds that there is a high likelihood
of a repetition of neglect in that none of the conditions that
brought the juvenile into the Department’s custody has
been corrected.
....
41. The Court finds that Respondent/Mother neglected the
juvenile within the meaning of G.S. 7B-1111(a)(1) and G.S.
7B-101(15) in that the neglect has continued through the
date of this hearing and is not due solely to the poverty of
the Respondent/Mother. Respondent/Mother has failed to
correct the conditions that led to the removal of the juvenile
from her custody, specifically substance abuse, such that
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Opinion of the Court
neglect would continue if the juvenile was returned to her
care. The juvenile was previously adjudicated neglected
and there is a high probability of the reptition of neglect if
the juvenile was returned to the custody of
Respondent/Mother.
42. The Court also finds that grounds exist based on G.S.
7B-1111(a)(2) in that Respondent/Mother has willfully, and
not due solely to poverty, left the juvenile in foster care or
placement outside of the home for more than twelve (12)
months without showing to the satisfaction of the court
that reasonable progress under the circumstances has been
made in correcting those conditions which led to removal of
the juvenile.
These unchallenged findings show that Mother failed to correct the substance
abuse conditions which led to Bella’s removal and support that a risk of future neglect
is probable. Record evidence shows that Bella had drugs in her system at birth,
suffered from withdrawal symptoms that had to be treated with morphine, and that
Mother admitted at the hospital to using heroin. The findings show that Mother
admitted to using heroin just two weeks prior to the hearing on the termination of
her parental rights. The competent record evidence and unchallenged findings of fact
support the finding that Mother’s conduct demonstrates “that she will not promote
the juvenile’s physical or emotional well-being.” In re K.N.K., 374 N.C. at 57, 839
S.E.2d at 740.
5. Dispositional Finding of Fact 16
Finding of fact 16 states: “The negative impact on the juvenile if
Respondent/Mother’s parental rights are terminated would be minimal and the
juvenile would be more than capable of handling such an impact.”
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Opinion of the Court
Covington’s testimony provides support for finding of fact 16. Covington
testified that Bella had gone more than a month without seeing Mother and did not
have any behavioral issues from Mother missing the visits; she also testified that
Bella has not expressed “any sadness or negative behaviors after long breaks between
visits.” Moreover, Covington was specifically asked about any potential negative
impact on Bella:
Q. What is the likelihood of [Bella] being adopted if both
the Respondent parent’s rights were terminated today?
A. It would be highly likely.
Q. And do you have any concerns with any negative impact
on [Bella] if the parent’s parental rights were terminated?
A. Negative, like behaviorally, I mean simply because I
haven’t seen it. I mean she -- it’s hard to say like as far as
like any cognitive. I mean of course not seeing her mom
may play an impact to some degree but --
Q. Do you think it will -- is it a long-term concern that you
have?
A. No.
This testimony provides support for the challenged finding of fact. In re
K.N.K., 374 N.C. at 57, 839 S.E.2d at 740.
6. Best Interests Determination
When making its best interests determination and dispositional findings,
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.
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Opinion of the Court
(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 considersation.
N.C. Gen. Stat. § 7B-1110(a) (2022). It is the province of the trial court to weigh these
factors, and it may assign more weight to one or more factors over the others. In re
C.L.C., 171 N.C. App. 438, 448, 615 S.E.2d 704, 709-10 (2005). The best interests of
the child is the “polar star” for the trial court to consider. In re Montgomery, 311 N.C.
101, 109, 316 S.E.2d 246, 251 (1984).
Here, the trial court made the requisite findings of fact as to all factors listed
in N.C. Gen. Stat. § 7B-1110(a) and Mother does not contest that the trial court made
findings as to all of these factors. Instead, Mother argues that the trial court failed
to make a reasoned analysis and give sufficient weight to her maternal bond with
Bella. However, the transcript shows that the trial court carefully considered
Mother’s bond with Bella:
The Court: . . . This goes to [Mother], and, obviously, there
is a mother-daughter bond there, obviously.
It’s evidenced by her excitement, what she calls her, the
fact that they do interact well together during the visits.
So there is a bond, and I’m not in any way naïve enough or
blind to the fact that if those visits stopped there would be
a potential negative reaction from [Bella]. I mean that’s --
of course. You have a bond with someone. You have a
relationship with someone. That relationship ends, and it
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can be hard. But for my purposes at this point in the
hearing, my only concern of whether it’s -- how hard it is
and whether it’s hard on [Bella]. I have no doubt that it’s
going to be exteremly hard on [Mother], but that legally
speaking my polar star is [Bella], not [Mother], and how
she’s going to react to it or how it’s going to make them feel.
I’m sure it would be devastating, but legally speaking and
practically speaking and in all intents what’s best for
[Bella], I have to look at what it’s going to do to [Bella],
potentially do to [Bella].
....
Frankly, this seems to be a child from the evidence I’ve
heard that is extremely well-adjusted, very adaptive, a
child that is flexible and a child that amazingly considering
the situation, is open to bonding and forming these close
relationships with people that care for her and she cares
for.
I don’t always see that. I see these things sometimes
stunting children. I’ve got evidence that she’s excited
whens she gets to see her mom and her grandmother, and
she’s excited when she gets to go back home to her foster
home where she spends the majority of her time, honest --
I mean when you have one hour a month out of the amount
of . . . hours in a month, the overwhelming majority of the
time she spends with her foster family and foster siblings.
She seems to be very adaptable and willing to form bonds
and no problem forming bonds, loving bonds, bonds that
excite her, bonds that make her happy. She has that with
her mother. She has that with her grandmother. She has
that with her foster family and her foster siblings.
So, ultimately, what I have to decide under all of the factors
under 7B-1110, not just one, but all of the factors, what’s
in her best interest moving forward, today forward fully
recognizing that terminating any type of bond could be
upsetting to her. But she’s certainly shown the ability and
the developmental ability to adapt and overcome hardships
in her life and the fact that she’s in foster care very well. .
. . [Bella] deserves a safe, stable, appropriate, loving, caring
home, all of those things, not just one or two of them, but
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all of them.
I have no doubt that [Bella] is loved by her mother, her
grandmother . . . but that also exists in her current
placement where she’s been for the majority of her life, over
half of her life anyway. She came into custody, . . .
approximately three months old, a three-month-old, who is
starting to form memories, attachments, and remember
things, and starting to build these things, she -- she has
only known foster care. That’s all she’s ever known.
....
Love is very important. I don’t doubt that she gets that
from [Mother], no doubt, but the reality is for almost two
years, everything else, including the love that she gets from
her foster family and her foster siblings, everything else
she’s gotten from her foster family, everything else . . . . So
I certainly understand the social worker’s opinion that that
bond would be stronger because it’s a daily bond that’s
reinforced daily. . . .
....
But you’ve said it yourself, she deserves a fit mom that she
deserves and you’ve -- you’ve indicated and agreed that, in
fact, you said today you take full responsibility for the fact
that you aren’t that today.
....
Every day this child gets older. Every day this child has
new experiences in her life, and she -- she deserves that
and she deserves to be somewhere she knows she’s going to
be and safe, stable, and appropriate.
The trial court thoughtfully considered and analyzed the bond between Bella
and Mother in its dispositional ruling, and particularly considered any potential
impact that severing the bond could have on Bella. After such consideration, the trial
court determined that it was in Bella’s best interests to terminate Mother’s parental
rights. The trial court did not abuse its discretion by terminating Mother’s parental
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rights as its decision was well-reasoned and supported by the record evidence. See In
re A.J.T., 374 N.C. at 512, 843 S.E.2d at 197 (“The bond between parent and child is
just one of the factors to be considered[.]” (brackets and citation omitted)); In re
Z.A.M., 374 N.C. 88, 101, 839 S.E.2d 792, 801 (2020) (concluding no abuse of
discretion where trial court considered all N.C. Gen. Stat. § 7B-1110 factors, made
proper findings on those factors, and analyzed the parental bond but gave more
weight to other factors over the parental bond).
III. Conclusion
There is competent record and testimonial evidence to support the trial court’s
dispositional findings of fact, with the exception of adjudicatory finding of fact 31, as
incorporated into dispositional finding of fact 1. In re K.N.K., 374 N.C. at 57, 839
S.E.2d at 740. However, even without adjudicatory finding of fact 31, the trial court’s
decision to terminate Mother’s parental rights was not an abuse of discretion as it
was not “manifestly unsupported by reason or one so arbitrary that it could not have
been the result of a reasoned decision.” In re A.R.A., 373 N.C. at 199, 835 S.E.2d at
423 (quotation marks and citations omitted).
AFFIRMED.
Judges DILLON and ARROWOOD concur.
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