In re D.C.

NO. COA13-502-2
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
IN THE MATTER OF: Chatham County
D.C. Nos. 10 JA 46
10 JT 46
Appeal by respondent from orders entered 18 April 2012 and
24 January 2013 by Judge Beverly Scarlett in District Court,
Chatham County. By opinion entered 15 October 2013, this Court
reversed and remanded the trial court’s orders. By order
entered on or about 11 June 2014, the North Carolina Supreme
Court remanded to this Court.
Holcomb & Cabe, LLP, by Carol J. Holcomb and Samantha H.
Cabe, for appellee Chatham County Department of Social
Services.
Parker Poe Adams & Bernstein LLP, by William L. Esser IV,
for guardian ad litem.
J. Thomas Diepenbrock, for appellant-respondent-mother.
STROUD, Judge.
This case comes to us by order of the North Carolina
Supreme Court remanding this case to us for reconsideration in
light of In re L.M.T., ___ N.C. ___, 752 S.E.2d 453 (2013). For
the following reasons, we affirm.
I. Background
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We recite the background and applicable law from our prior
opinion:
On 15 March 2011, the Chatham County
Department of Social Services (“DSS”) filed
a juvenile petition alleging that Derrick1
was a neglected and dependent juvenile, and
on 1 June 2011, the trial court adjudicated
Derrick a neglected juvenile. On 18 April
2012, the trial court changed Derrick’s
permanent plan to adoption and ordered that
“[a] Termination of Parental Rights Motion
shall be filed” [“Permanency Planning
Order”]. Respondent filed notice preserving
her right to appeal the 18 April 2012 order.
On 24 January 2013, the trial court
terminated respondent-mother’s parental
rights due to neglect, failure to make
reasonable progress, and failure to pay a
reasonable portion of support [“TPR
Order.”]. Respondent appealed the 24
January 2013 order.
On appeal, respondent contends that the
trial court erred in its 18 April 2012
permanency planning order by ceasing
reunification efforts without entering the
necessary findings of fact required by North
Carolina General Statute § 7B-507(b)(1).
DSS argues that the trial court never
ordered the cessation of reunification
efforts and, therefore, was not required to
make findings under North Carolina General
Statute § 7B-507(b). . . . Moreover, the
trial court here changed the permanent plan
to adoption, and respondent-mother properly
preserved her right to appeal the cessation
of reunification efforts pursuant to N.C.
Gen. Stat. § 7B–507(c). This Court
determined in In re A.P.W. that an order
which directs the filing of a petition to
1
A pseudonym will be used to protect the identity of the child
involved.
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terminate parental rights and changes the
permanent plan to adoption has implicitly
ordered the cessation of reunification
efforts. ___ N.C. App. ___, ___, 741 S.E.2d
388, 391 (“As in J.N.S., the trial court in
the instant case directed DSS to file a
petition to terminate parental rights.
Moreover, the trial court here changed the
permanent plan to adoption, and respondent-
mother properly preserved her right to
appeal the cessation of reunification
efforts pursuant to N.C. Gen. Stat. § 7B–
507(c). Based on the foregoing, we hold that
the trial court’s 21 June 2011 order
implicitly ceased reunification efforts, and
we reject DSS’s argument for dismissal.”),
disc. review denied, ___ N.C. ___, ___
S.E.2d ___ (2013).
In re D.C., ___ N.C. App. ___, 752 S.E.2d 257 (No. COA13-502)
(Oct. 15, 2013) (unpublished) (heading omitted).
II. Permanency Planning Order
Respondent argues that “the trial court erred when it
entered a permanency planning review order changing the
permanent plan to adoption because the order effectively ceased
reunification efforts without including the findings of fact
required by statute[.]” (Original in all caps.)
“This Court reviews an order that
ceases reunification efforts to determine
whether the trial court made appropriate
findings, whether the findings are based
upon credible evidence, whether the findings
of fact support the trial court’s
conclusions, and whether the trial court
abused its discretion with respect to
disposition.” In re C.M., 183 N.C. App.
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207, 213, 644 S.E.2d 588, 594 (2007).
North Carolina General Statute § 7B-
507(b) provides:
In any order placing a juvenile in
the custody or placement
responsibility of a county
department of social services, . .
. the court may direct that
reasonable efforts to eliminate
the need for placement of the
juvenile shall not be required or
shall cease if the court makes
written findings of fact that:
(1) Such efforts clearly would be
futile or would be
inconsistent with the
juvenile’s health, safety,
and need for a safe,
permanent home within a
reasonable period of
time[.]
N.C. Gen. Stat. § 7B-507(b)(1) (2011).
In re D.C., ___ N.C. App. ___, 752 S.E.2d 257 (No. COA13-502)
(Oct. 15, 2013) (unpublished).
The Supreme Court has directed that our reconsideration be
directed by the requirements of L.M.T., which states that
[s]trict adherence to this statute [North
Carolina General Statute § 7B-507(b),]
ensures that the trial court fulfills the
aspirations of the Juvenile Code by allowing
our appellate courts to conduct a thorough
review of the order. While trial courts are
advised that use of the actual statutory
language would be the best practice, the
statute does not demand a verbatim
recitation of its language as was required
by the Court of Appeals in this case. Put
differently, the order must make clear that
the trial court considered the evidence in
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light of whether reunification “would be
futile or would be inconsistent with the
juvenile’s health, safety, and need for a
safe, permanent home within a reasonable
period of time.” The trial court’s written
findings must address the statute’s
concerns, but need not quote its exact
language. On the other hand, use of the
precise statutory language will not remedy a
lack of supporting evidence for the trial
court’s order.
___ N.C. ___, ___, 752 S.E.2d 453, 455 (2013). The Supreme
Court further clarified that the order ceasing reunification
should be considered together with the termination of parental
rights order in cases such as this; in other words, either order
standing alone or the orders as read together can be enough to
satisfy the language of North Carolina General Statute § 7B-
507(b). Id. at ___, 752 S.E.2d at 456-57.
The guardian ad litem brief to this Court acknowledged that
the Permanency Planning Order was deficient because of its
failure to make the findings of fact as required by North
Carolina General Statute § 7B-507(b). In our prior opinion, we
agreed and reversed and remanded “to the trial court for further
proceedings.” In re D.C., ___ N.C. App. ___, 752 S.E.2d 257
(No. COA13-502) (Oct. 15, 2013) (unpublished) (citation and
quotation marks omitted). Now that we reconsider the Permanency
Planning Order in light of our Supreme Court’s directives in
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L.M.T., the Permanency Planning Order standing alone remains
deficient, but we must reconsider it in conjunction with the TPR
Order.
The 18 April 2012 Permanency Planning Order that ceased
reunification made general findings regarding respondent’s lack
of complete compliance with her drug treatment program. The
trial court also made numerous positive findings of fact
regarding respondent’s completion of parent-child therapy, her
strong bond with Derrick, her attendance of her individual
therapy sessions including progress with her goals, her
enrollment in college, her maintenance of weekly visits and
regular phone calls with Derrick wherein her interactions were
“positive and appropriate[,]” and her claimed attendance to
substance abuse treatment. In this regard, as far as we can tell
from the trial court’s orders, this situation was different from
that presented by L.M.T., in which even the permanency planning
order alone showed that the respondent continued to have a drug
problem that had worsened over time, lived in an environment
involving serious domestic violence, and had also received an
eviction notice from her current home. Id. at ___, 752 S.E.2d
at 455-56. The trial court found in the “cease reunification
order” in L.M.T. that
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the Respondent Mother was sinking deeper and
deeper into an abyss of domestic violence
and drug abuse all the while covering it up
and refusing to acknowledge the fact of its
existence in order that the Court, the
Department, the Guardian ad Litem and others
surrounding her could assist her and help
the juveniles. The deception of the Court
during this process is bad enough, but the
Respondent Mother has completely let her
children down.
Id. at ___, 752 S.E.2d at 455-56 (emphasis added).
In L.M.T., the Supreme Court determined that the “cease
reunification order” alone was sufficient to satisfy the
requirements of North Carolina General Statute § 7B-507(b), but
went on to address the termination of parental rights order as
well. Id. at ___, 752 S.E.2d at 455-58. Specifically, the
Supreme Court stated:
Even if the cease reunification order
standing alone had been insufficient, that
would not end the appellate court’s inquiry.
Parents may seek appellate review of cease
reunification orders only in limited
circumstances. In this case, respondent
appealed under subsection 7B–1001(a)(5)(a),
which provides that
a. The Court of Appeals shall review
[an] order [entered under section
7B–507] to cease reunification
together with an appeal of the
termination of parental rights
order if all of the following
apply:
1. A motion or petition to
terminate the parent’s rights
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is heard and granted.
2. The order terminating
parental rights is appealed in a
proper and timely manner.
3. The order to cease
reunification is identified
as an issue in the record on
appeal of the termination of
parental rights.
Id. § 7B–1001(a)(5) (2011). In other words,
if a termination of parental rights order is
entered, the appeal of the cease
reunification order is combined with the
appeal of the termination order.
Id. at ___, 752 S.E.2d at 456.
As noted above, the Permanency Planning Order is
insufficient, standing alone, to satisfy the requirements of
North Carolina General Statute § 7B-507(b)(1). Accordingly, as
directed by L.M.T., we turn to the TPR Order to see if the
findings of fact in that order in conjunction with the
Permanency Planning Order which ordered a permanent plan of
adoption would satisfy the requirements of North Carolina
General Statute § 7B-507(b)(1). See id. at ___ 752 S.E.2d at
456-57. In the TPR Order, the trial court made additional
detailed findings of fact regarding respondent’s drug abuse and
failures of treatment, going back to February of 2010 and
continuing up to the time of the hearing on termination of
parental rights. It is apparent, reading the Permanency Planning
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Order and TPR Order together, that respondent continued in her
pattern of attempts at recovery from her substance abuse
problems and relapsing into abuse. Respondent does not
challenge the sufficiency of the evidence to support the
findings of fact in either order. Based upon all of the
findings, considering the two orders together, “the order[s]
embrace[] the substance of the statutory provisions requiring
findings of fact that further reunification efforts would be
futile or would be inconsistent with the juvenile’s health,
safety, and need for a safe, permanent home within a reasonable
period of time.” Id. at ___, 752 S.E.2d at 456-57 (citation and
quotation marks omitted).
In addition, we note that the Permanency Planning Order did
not order DSS to cease its reunification efforts with
respondent, despite changing the permanent plan to adoption;
thus, respondent had the benefit of continued access to the
services and assistance of DSS in attempting to correct the
conditions which led to the child’s removal even though the
permanent plan had been changed to adoption. In this situation,
the deficiencies of the Permanency Planning Order did not impair
respondent’s ability to improve her situation prior to the
hearing on termination of parental rights. As such, this
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argument is overruled.
III. TPR Order
Respondent also contends that the trial court “abused its
discretion by concluding that the best interest of the minor
child would be served by termination of the respondent-mother’s
parental rights.” (Original in all caps.) Respondent does not
challenge the grounds for termination but solely whether the
trial court properly considered whether termination of her
parental rights was in Derrick’s best interests. We review the
trial court’s determination of what is in the best interests of
the child for abuse of discretion. Id. at ___, 752 S.E.2d at
457.
North Carolina General Statute § 7B-1110(a) provides,
After an adjudication that one or more
grounds for terminating a parent’s rights
exist, the court shall determine whether
terminating the parent’s rights is in the
juvenile's best interest. 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
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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) (2013). Defendant contends that
the trial court failed to properly consider and make findings of
fact regarding factors 3, 4, and 5 in North Carolina General
Statute § 7B-1110(a).
As to “[w]hether the termination of parental rights will
aid
in the accomplishment of the permanent plan[,]” id., for Derrick
the trial court found:
b. Termination of Respondent’s parental
rights is necessary to implement the
permanent plan of adoption.
c. Termination of Parental Rights is the
only barrier to the adoption of the
child.
As to “[t]he bond between the juvenile and the parent[,]” while
the trial court may not have used the exact word “bond” it did
find that Derrick “is approximately five and one-half (5 ½)
years old and has been in foster care for over two years[,]”
indicating that Derrick could not have had a strong bond with
respondent as he would barely, if at all, have remembered her as
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his primary guardian. The trial court further found that
Derrick “was happy to see his siblings and Mr. Johnson[,
prospective adoptive father,] and did not want to leave when the
visit ended” indicating that Derrick’s primary bond is with the
prospective adoptive family and not respondent. As to “[t]he
quality of the relationship between the juvenile and the
proposed adoptive parent[,]” id., the trial court found that the
prospective adoptive parents “are willing to adopt [Derrick] and
have him as a part of their large and loving family.” As the
trial court considered the appropriate factors, we conclude that
the trial court did not abuse its discretion in determining
termination of respondent’s parental rights was in Derrick’s
best interests. This argument is overruled.
IV. Conclusion
For the foregoing reasons, we affirm both the Permanency
Planning Order and the TPR Order.
AFFIRMED.
Judges MCGEE and BRYANT concur.