In re S.M.M.

IN THE SUPREME COURT OF NORTH CAROLINA
No. 299A19
Filed 17 July 2020
IN THE MATTER OF: S.M.M.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from order entered on 30 April
2019 by Judge Christy E. Wilhelm in District Court, Cabarrus County. This matter
was calendared for argument in the Supreme Court on 19 June 2020 but determined
on the record and briefs without oral argument pursuant to Rule 30(f) of the North
Carolina Rules of Appellate Procedure.
Hartsell & Williams, PA, by H. Jay White and Austin “Dutch” Entwistle III, for
petitioner-appellee Cabarrus County Department of Human Services.
Womble Bond Dickinson (US) LLP, by Jacob S. Wharton and Ryan H. Niland,
for appellee Guardian ad Litem.
Mercedes O. Chut for respondent-appellant mother.
EARLS, Justice.
Respondent appeals from an order terminating her parental rights to her
minor child, S.M.M. (Sarah).1 We hold the trial court properly complied with the
Court of Appeals’ mandate on remand from In re S.M.M., 822 S.E.2d 329, 2019 N.C.
App. LEXIS 13, 2019 WL 190200 (N.C. Ct. App. 2019) (unpublished), and the court’s
1The minor child will be referred to throughout this opinion as “Sarah,” which is a
pseudonym used to protect the child’s identity and for ease of reading.
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conclusion that termination of respondent’s parental rights is in Sarah’s best
interests does not constitute an abuse of discretion.
The Cabarrus County Department of Human Services (CCDHS) obtained non-
secure custody of Sarah and filed a petition alleging she was a neglected juvenile on
5 November 2015.2 After a hearing on 14 April 2016, the trial court entered an order
adjudicating Sarah to be a neglected juvenile and continuing her in CCDHS custody.
On 30 May 2017, CCDHS filed a motion in the cause to terminate respondent’s
parental rights to Sarah based on the grounds of neglect, failure to make reasonable
progress, failure to pay a reasonable portion of the cost of Sarah’s care, dependency,
and abandonment. See N.C.G.S. § 7B-1111(a)(1)–(3), (6)–(7) (2019). The trial court
entered an order terminating respondent’s parental rights on 9 April 2018,
concluding the grounds alleged by CCDHS existed and termination was in Sarah’s
best interests. Respondent appealed, and the Court of Appeals affirmed the trial
court’s adjudication of grounds based on neglect but reversed the court’s best interests
determination. In re S.M.M., 822 S.E.2d 329, 2019 N.C. App. LEXIS 13, 2019 WL
190200. The Court of Appeals concluded the trial court’s dispositional findings of fact
did not address Sarah’s likelihood of adoption, see N.C.G.S. § 7B-1110(a)(2) (2019),
which was placed at issue by testimony at the hearing from a social worker and from
2 A full recitation of the underlying factual and procedural history of this case can be
found in the Court of Appeals’ opinion in In re S.M.M., 822 S.E.2d 329, 2019 N.C. App. LEXIS
13, 2019 WL 190200.
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Sarah’s guardian ad litem (GAL). The Court of Appeals remanded for the trial court
to make findings of fact on this statutory factor. In re S.M.M., 2019 N.C. App. LEXIS
13, at *13, 2019 WL 190200, at *5.
On remand, respondent filed a motion to reopen the evidence to present
additional evidence of Sarah’s likelihood of adoption, including evidence of the
changes in her and Sarah’s circumstances since the original termination hearing.
After a 28 March 2019 hearing on the motion to reopen evidence, the trial court
denied the motion by order entered 23 April 2019.
The trial court entered its amended order terminating respondent’s parental
rights on 30 April 2019. The court made multiple new findings of fact regarding
Sarah’s likelihood of adoption and again concluded termination of respondent’s
parental rights was in Sarah’s best interests. Respondent appeals.
We first address respondent’s argument that the trial court abused its
discretion in denying her motion to reopen the evidence. Respondent contends the
trial court could not comply with the mandate from the Court of Appeals without
reopening the evidence, because the trial court could not make the necessary findings
on Sarah’s adoptability without considering her circumstances at the time of the
remand hearing. Additionally, respondent contends the trial court was required to
reopen the evidence despite the Court of Appeals’ mandate leaving it to the trial
court’s discretion because “[w]henever the trial court is determining the best interest
of a child, any evidence which is competent and relevant to a showing of the best
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interest of that child must be heard and considered by the trial court, subject to the
discretionary powers of the trial court to exclude cumulative testimony.” In re Shue,
311 N.C. 586, 597, 319 S.E.2d 567, 574 (1984) (emphasis added). Respondent argues
the Court of Appeals remanded the matter to the trial court for a new best interests
determination, which thus required the trial court to hear any additional evidence
proffered by the parties.
Contrary to respondent’s assertion, the trial court was not required to reopen
evidence on remand on the facts of this case. It is well established that the mandate
of an appellate court “is binding upon [the trial court] and must be strictly followed
without variation or departure. No judgment other than that directed or permitted
by the appellate court may be entered.” Lea Co. v. N.C. Bd. of Transp., 323 N.C. 697,
699, 374 S.E.2d 866, 868 (1989) (alteration in original) (quoting D & W, Inc. v.
Charlotte, 268 N.C. 720, 722, 152 S.E.2d 199, 202 (1966)). The mandate of the Court
of Appeals required the trial court to make findings of fact regarding Sarah’s
likelihood of adoption, a factor that must be considered in determining the best
interests of a juvenile when terminating parental rights, see N.C.G.S. § 7B-1110(a)(2),
and about which particular findings of fact must be made when conflicting evidence
places the factor at issue. See, e.g., In re A.U.D., 373 N.C. 3, 10–11, 832 S.E.2d 698,
702–03 (2019) (holding that a trial court is not required to make written findings
concerning factors set out in section 7B-1110(a) in the absence of conflicting evidence
relating to the factor in question). The Court of Appeals here held that the evidence
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Opinion of the Court
at the original hearing placed the likelihood of adoption factor at issue, but the trial
court failed to make the requisite findings of fact. In re S.M.M., 2019 N.C. App. LEXIS
13, at *13, 2019 WL 190200, at *5.
The Court of Appeals remanded the matter for the sole purpose of allowing the
trial court to make the required findings, id., not for a new dispositional hearing
where the court would have been required to hear any relevant evidence as to Sarah’s
best interests. Shue, 311 N.C. at 597, 319 S.E.2d at 574. The Court of Appeals did
note that “[t]he trial court retains the discretion to supplement its order as it sees fit,
so long as it complies with the statute.” In re S.M.M., 2019 N.C. App. LEXIS 13, at
*13, n3, 2019 WL 190200, at *5, n3. However, the opinion was silent as to whether
the trial court should take new evidence on remand and, therefore, the Court of
Appeals left that decision to the trial court’s sound discretion. See, e.g., In re J.M.D.,
210 N.C. App. 420, 428, 708 S.E.2d 167, 173 (2011) (“Whether on remand for
additional findings a trial court receives new evidence or relies on previous evidence
submitted is a matter within the discretion of the trial court.” (quoting Hicks v.
Alford, 156 N.C. App. 384, 389, 576 S.E.2d. 410, 414 (2003))).
Most significantly, although respondent made general representations about
the degree to which all children change between the ages of 10 and 12, nothing in
respondent’s motion identified any specific circumstances or forecast any particular
changes in Sarah’s life that would have any bearing on the question of the likelihood
of her adoption. Mere speculation that some facts may have changed in the eighteen
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months since the court originally heard the evidence is not sufficient to demonstrate
that the trial court abused its discretion in denying respondent’s motion to reopen the
evidence on remand. Absent any forecast of relevant testimony or other evidence
bearing upon the Court’s ultimate determination of the child’s best interests, the trial
court’s decision to refrain from reopening the record is entirely consistent with this
Court’s general admonition that a trial court must always hear any relevant and
competent evidence concerning the best interests of the child. See In re Shue, 311
N.C. at 597, 319 S.E.2d at 576. In this case there was simply no further relevant and
competent evidence to be heard by the trial court on remand.
The trial court was able to make the required findings concerning the
likelihood of Sarah’s adoption from the evidence presented at the original hearing.
The new findings satisfy the mandate of the Court of Appeals, and we hold the trial
court did not abuse its discretion in denying respondent’s motion to reopen the
evidence.
Respondent further contends the trial court never conducted a dispositional
hearing and thus, never received proper dispositional evidence. However, the hearing
transcript shows the trial court heard dispositional evidence from a CCDHS social
worker and the GAL and received the GAL’s dispositional report into evidence.
Although the dispositional evidence was intertwined with adjudicatory evidence, a
trial court is not required to bifurcate the hearing into two distinct stages. See, e.g.,
In re R.B.B., 187 N.C. App. 639, 643–44, 654 S.E.2d 514, 518 (2007) (“[A] trial court
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may combine the N.C.G.S. § 7B-1109 adjudicatory stage and the N.C.G.S. § 7B-1110
dispositional stage into one hearing, so long as the trial court applies the correct
evidentiary standard at each stage and the trial court’s orders associated with the
termination action contain the appropriate standard-of-proof recitations.”), disc.
review denied, 362 N.C. 235, 659 S.E.2d 738 (2008).
We next address respondent’s challenges to the trial court’s findings of fact
regarding Sarah’s likelihood of adoption and her argument that the trial court abused
its discretion in assessing Sarah’s best interests.
In determining whether termination of parental rights is in the best interests
of a juvenile:
The court may consider any evidence, including hearsay
evidence as defined in G.S. 8C-1, Rule 801, that the court
finds to be relevant, reliable, and necessary to determine
the best interests of the juvenile. 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 the parent.
(5) The quality of the relationship between the juvenile
and the proposed adoptive parent, guardian,
custodian, or other permanent placement.
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(6) Any relevant consideration.
N.C.G.S. § 7B-1110(a) (2019). A trial court’s best interests determination “is reviewed
solely for abuse of discretion.” In re A.U.D., 373 N.C. at 6, 832 S.E.2d at 700 (citing
In re D.L.W., 368 N.C. 835, 842, 788 S.E.2d 162, 167 (2016)). “Abuse of discretion
results where the court’s ruling is manifestly unsupported by reason or is so arbitrary
that it could not have been the result of a reasoned decision.” Id. at 6–7, 832 S.E.2d
at 700–01 (modification omitted) (quoting In re T.L.H., 368 N.C. 101, 107, 772 S.E.2d
451, 455 (2015)). “[O]ur appellate courts are bound by the trial courts’ findings of fact
where there is some evidence to support those findings, even though the evidence
might sustain findings to the contrary.” In re Montgomery, 311 N.C. 101, 110–11, 316
S.E.2d 246, 252–53 (1984).
On remand, the trial court amended its order terminating respondent’s
parental rights to include the following findings of fact regarding Sarah’s likelihood
of adoption:
4. There is a high likelihood of adoption once the juvenile
can get stable, but she cannot be stable until she has
closure regarding her relationship with her biological
family. The juvenile needs permission to not feel guilty and
to move forward and to allow herself to be loved by someone
that can care for her appropriately.
5. Although the Juvenile struggles with transition, she is
also in the process of stepping down from her current
treatment program. When there are changes in her
environment it causes the juvenile some stress and
anxiety, which comes out in her behaviors.
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6. The Juvenile has moderate mental health needs, based
on a diagnosis of post-traumatic stress disorder and
disruptive mood dysregulation disorder. The juvenile is
extremely guarded. She is eleven years old and has
endured years of injurious environment and neglect and
exposure to substance abuse, domestic violence, and for her
to be able to process that trauma that she has been
through, she needs closure and as long as the biological
family is in the picture, she feels split. Her loyalties are
divided and she doesn’t know how she should feel and she
has expressed multiple times that it is her fault that she is
in foster care.
7. The juvenile needs a little bit more stability before the
conversation about adoption can occur. She has only been
in this placement for a month and a half, and the juvenile
and the foster parents need time to develop a bond before
a discussion can be had. In addition, the Juvenile needs
closure to allow for her to develop a bond because she is so
guarded.
8. The plan to find the juvenile an adoptive home would be
to start with the current placement and see if they are
interested in keeping the juvenile. Once parents’ rights are
terminated, if there is not an identified adoptive home,
CCDHS would complete adoption recruitment on behalf of
the juvenile, including building a child profile, detailing the
child’s likes, dislikes, their needs, and it is submitted to NC
Kids. NC Kids is a state website and also feeds into Adopt
U.S. Kids, a national website to recruit for families. Pre-
placement assessments for interested families would go to
CCDHS and a team reviews them to determine which is
the best placement for the child, and then the child would
be placed in that home on a trial basis.
9. If an adoptive home is not located, the juvenile remains
in CCDHS [custody] and they would continue to recruit to
find an adoptive home for the juvenile. If the juvenile
reaches the age of eighteen and is not adopted, the juvenile
can transition into the LINKS program at CCDHS which
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helps teens transition into adulthood and develop
necessary life skills.
Respondent first argues finding of fact four is erroneous. She contends the
finding implies Sarah’s only obstacle to stability was her relationship with her
biological family, which is not supported by the evidence. She argues the evidence
established that “closure” meant more than just severance from her biological family
and included being able to process past trauma. She additionally contends the
evidence regarding stability and closure for Sarah was only discussed in the context
of whether termination of parental rights was in Sarah’s best interests, and not
specifically whether Sarah had a likelihood of adoption. Respondent further argues
that without additional findings of fact as to what constitutes “stability” for Sarah
and whether she would be able to obtain stability before reaching the age of majority,
the likelihood of adoption is unknown.
Finding of fact four does not state that Sarah’s relationship to her family was
the only barrier to her ability to achieve stability in her life, but rather that severing
the relationship was a necessary precondition to achieving it. The finding also does
not suggest that “closure” for Sarah meant only the severance of parental rights.
Finding of fact four is fully supported by testimony from the social worker, who
testified, “the likelihood of adoption is high once we get [Sarah] stable, but she cannot
be stable until she has closure.” The social worker further testified:
[Sarah] has endured years and years of an injurious
environment and neglect and exposure to substance abuse,
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domestic violence, and for her to be able to process that
trauma that she has been through, she needs closure. And
as long as biological family are in the picture, . . . she’s split
and her loyalties are divided and she doesn’t know how she
should feel, and she’s expressed to me multiple times that,
“It is my fault that I’m in foster care. I should have never
said anything.” And so she needs that closure in order to .
. . allow for her to develop a bond, because she’s so guarded
right now.
Furthermore, the trial court was not required to make findings of fact showing
Sarah will attain the necessary stability to be adopted. See, e.g., In re Norris, 65 N.C.
App. 269, 275, 310 S.E.2d 25, 29 (1983) (“It suffices to say that . . . a finding [of
adoptability] is not required in order to terminate parental rights.”), cert. denied, 310
N.C. 744, 315 S.E.2d 703 (1984). Section 7B-1110 does not require the trial court to
set forth detailed findings establishing the benchmarks a traumatized child must
meet to obtain the necessary stability to be adopted. The court had only to make
findings of fact addressing Sarah’s likelihood of adoption.
Respondent next contends finding of fact five minimizes Sarah’s mental health
and behavioral issues and creates an inaccurate perception that her conditions have
improved enough to enable her to “step down” from her current therapeutic
placement. Respondent argues there is no evidence Sarah was stepping down from
her current treatment program, was only experiencing stress and anxiety, or was
making progress toward her transition.
Respondent, however, ignores the social worker’s testimony that Sarah was “in
the process of stepping down from her current treatment program and I think that’s
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causing some stress and anxiety, which is coming out in her behavior.” The social
worker testified a more permanent and stable environment would help Sarah, and
Sarah’s current foster parents, who are participating in her therapeutic care, were
willing to keep fostering her as she is stepped down to a lower level of care so that
she does not have to make another disruptive transition. Contrary to respondent’s
interpretation, this finding does not state Sarah is only experiencing stress or
indicate her progress in making the transition. The finding also does not minimize
Sarah’s mental health and behavioral issues and acknowledges her struggles with
transition as a result of her issues.
Respondent also argues finding of fact six implies that Sarah’s mental health
diagnoses caused her guarded and conflicted behavior and that her mental health
and behavioral issues will go away if parental rights are terminated. The finding that
Sarah is “extremely guarded” holds no such implication. The statement is supported
by testimony from the social worker and carries no improper implication merely
because the relevant testimony followed the social worker’s identification of Sarah’s
specific mental health diagnoses.
Respondent appears to suggest the trial court should have made additional
findings regarding the nature of Sarah’s disruptive behaviors. However, a trial court
is only required to make findings of fact necessary to resolve material issues. See, e.g.,
Carpenter v. Carpenter, 225 N.C. App. 269, 271, 737 S.E.2d 783, 785 (2013) (“[T]he
trial court need not make a finding as to every fact which arises from the evidence;
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rather, the court need only find those facts which are material to the resolution of the
dispute.” (citation omitted)). The nature of Sarah’s mental health and behavioral
issues was not in dispute, and the trial court was not required to make findings on
those issues.
Respondent further argues finding of fact seven takes the social worker’s
testimony out of context and creates an inaccurate impression that all Sarah needed
to gain “stability” was termination of parental rights. We conclude the finding is fully
supported by the social worker’s testimony. The finding states that Sarah needs more
stability before a “conversation about adoption can occur,” not that stability will
automatically cause Sarah to develop a bond with her potential adoptive parents. The
trial court’s finding merely indicates stability and closure will assist Sarah in
attaining her permanent plan of adoption, not that adoption is guaranteed. We agree
with respondent that there is no evidence the foster parents are open to adopting
Sarah. The record instead establishes that Sarah needs more stability and closure
before CCDHS initiates that conversation with Sarah and her foster parents.
Respondent also argues the trial court’s finding of fact that it “accepted the
[GAL’s] court report into evidence, as it relates to the best interests of the child” is
erroneous because it does no more than recite the evidence. Respondent takes issue
with numerous statements in the report and the report’s failure to discuss other
aspects of the case. Respondent appears to believe the trial court’s finding adopted
the report’s findings as its own, however, the finding simply acknowledges for the
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record that the report had been admitted into evidence for dispositional purposes.
The court did not adopt the report’s findings as its own, and we do not treat the
report’s findings as anything more than evidence in the case.
We hold the above challenged findings of fact are supported by competent
record evidence and are binding on appeal. See Montgomery, 311 N.C. at 110–11, 316
S.E.2d at 252–53. Respondent does not challenge the remaining dispositional findings
of fact, and they are thus binding on appeal. See Koufman v. Koufman, 330 N.C. 93,
97, 408 S.E.2d 729, 731 (1991) (“Where no exception is taken to a finding of fact by
the trial court, the finding is presumed to be supported by competent evidence and is
binding on appeal.”).
Next, respondent argues the trial court did not comply with the remand
instructions from the Court of Appeals, because its findings do not resolve what
respondent contends is a conflict between the testimony of the social worker and the
GAL over whether there is a “high likelihood” that Sarah will be adopted. Respondent
asserts that the amended findings ignore the GAL’s report altogether and, as argued
above, are erroneous.
However, nothing in the remand order actually states that the two slightly
different assessments are irreconcilable or determinative of whether termination of
respondent’s parental rights is in Sarah’s best interests. The Court of Appeals
remanded this matter for the trial court to address Sarah’s likelihood of adoption, see
N.C.G.S. § 7B-1110(a)(2) (2019), which it held was placed at issue due to testimony
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from a social worker and from Sarah’s GAL. In re S.M.M., 2019 N.C. App. LEXIS at
*13, 2019 WL 190200 at *5. The social worker’s testimony that she thought “the
likelihood of adoption is high once we get [Sarah] stable, but she cannot be stable
until she has closure” and that “[Sarah] needs a little bit more stability before we can
have that conversation [about adoption,]” is not contradicted by the GAL’s written
report, which stated “[t]he likelihood of adoption is good.” Id. The amended findings
set forth above find Sarah to have a high likelihood of adoption and, as discussed
above, are supported by competent evidence. The findings therefore complied with
the Court’s remand instructions.
Respondent lastly argues the trial court abused its discretion in concluding
termination of her parental rights is in Sarah’s best interests. Respondent contends
the court’s findings do not support its conclusion and its conclusion is not the result
of a reasoned decision because the court failed to include an analysis of Sarah’s actual
likelihood of adoption and possibility that termination of respondent’s parental rights
will render Sarah a “legal orphan.”
However, the trial court’s dispositional findings of fact on remand address all
the relevant criteria required by N.C.G.S. § 7B-1110(a). The findings establish that
Sarah has a likelihood of adoption only if she obtains stability in her life and closure
with the traumas of her past, which cannot be obtained absent the termination of
respondent’s parental rights. The findings make clear that the trial court recognized
Sarah may never achieve the necessary stability and closure to be adopted, but it is
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well established that a likelihood of adoption is not necessary for a court to conclude
termination of parental rights is in a juvenile’s best interests. See, e.g., Norris, 65
N.C. App. at 275, 310 S.E.2d at 29.
The trial court’s order shows a well-reasoned weighing of Sarah’s adoptability
and the obstacles thereto, along with her age, lack of appropriate bond with
respondent, and need for permanency. Accordingly, we hold the trial court did not
abuse its discretion in concluding that termination of respondent’s parental rights
was in Sarah’s best interests, and we affirm the trial court’s order.
AFFIRMED.
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