In re A.U.D. ( 2019 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 133A19
Filed 27 September 2019
IN THE MATTER OF A.U.D. and A.X.D.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 20
December 2018 by Judge Donald Cureton Jr. in District Court, Mecklenburg County.
This matter was calendared in the Supreme Court on 11 September 2019 but
determined on the record and briefs without oral argument pursuant to Rule 30(f) of
the North Carolina Rules of Appellate Procedure.
Heyward Wall Law, P.A., by Heyward G. Wall, for petitioner-appellant Bethany
Christian Services.
Edward Eldred for respondent-appellee father.
DAVIS, Justice.
This case involves a private termination of parental rights proceeding initiated
by petitioner Bethany Christian Services (BCS) against respondent-father. In this
appeal, we consider whether the trial court erred by declining to terminate
respondent’s parental rights to his children based on its determination that
termination would not be in the best interests of the children. Because we conclude
that the trial court’s ruling was within its discretion, we affirm.
Factual and Procedural Background
IN RE: A.U.D. AND A.X.D.
Opinion of the Court
Tanya1 and respondent began a relationship in 2016, and Tanya became
pregnant with twin girls, Amy and Ann (collectively, the children), shortly thereafter.
The parties never married, and their relationship ended prior to the children’s birth.
In September 2016, Tanya falsely informed respondent that she had miscarried and
ended contact with him. In January 2017, respondent encountered Tanya at the
hospital where she worked and noticed that she appeared to be pregnant. However,
respondent did not ask her about the pregnancy.
Respondent pled guilty to being a habitual felon in February 2017 after being
convicted of assault with a deadly weapon with the intent to kill or inflict serious
injury.2 While incarcerated, respondent learned that Tanya was, in fact, pregnant
and due to deliver in May 2017. In April 2017, respondent wrote to North Carolina
Prisoner Legal Services for assistance in establishing paternity. Per its instructions,
he attempted to submit a complaint and affidavit of parentage with Mecklenburg
County Child Support Enforcement, but the documents were never actually filed with
the clerk of court.
After the children’s birth in May 2017, Tanya initially cared for them. In June
2017, however, she placed them in the care of Sarah, the children’s maternal aunt.
On 3 August 2017, Tanya relinquished her parental rights to the children to BCS, an
adoption agency. Later that month, Tanya visited Sarah’s home with two social
1 Pseudonyms are used throughout this opinion to protect the identities of the
juveniles and for ease of reading.
2 Respondent has a projected release date of August 2021.
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IN RE: A.U.D. AND A.X.D.
Opinion of the Court
workers, who proceeded to take custody of the children. Shortly thereafter, Sarah
obtained emergency custody of the children in District Court, Mecklenburg County.
BCS filed a motion to intervene in the custody action and was awarded custody. BCS
subsequently placed the children with a prospective adoptive family, where they have
lived through the present date.
On 28 August 2017, BCS filed a petition to terminate respondent’s parental
rights in District Court, Wake County on the grounds of neglect, failure to legitimate,
and dependency. See N.C.G.S. § 7B-1111(a)(1), (5), (6) (2017). Respondent then
sought an adjudication of paternity and filed an answer to BCS’s petition. The results
of respondent’s DNA test showed a 99.99% probability of paternity as to the children.
Respondent also executed an affidavit of parentage. On 18 May 2018, the court
entered an order declaring him to be the children’s father. In August 2018, the court
granted respondent’s motion to change venue, and the termination of parental rights
matter was moved to Mecklenburg County.
A hearing on the petition to terminate respondent’s parental rights was held
before the Honorable Donald Cureton Jr. on 7 December 2018 in District Court,
Mecklenburg County. At the hearing, the trial court heard testimony from
respondent, Tanya, Sarah, the children’s guardian ad litem, and the prospective
adoptive parents.
On 20 December 2018, the trial court entered an order in which it concluded
that although a ground existed to terminate respondent’s parental rights under
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IN RE: A.U.D. AND A.X.D.
Opinion of the Court
N.C.G.S. § 7B-1111(a)(5), termination was not in the best interests of the children.
Accordingly, the trial court denied BCS’s petition. BCS gave timely notice of appeal
to this Court.
Analysis
In this appeal, BCS argues that the trial court failed to make sufficient findings
of fact in its 20 December 2018 order and abused its discretion when it determined
that termination of respondent’s parental rights was not in the best interests of the
children. Our Juvenile Code provides for a two-stage process for the termination of
parental rights—an adjudicatory stage and a dispositional stage. N.C.G.S. §§ 7B-
1109, -1110 (2017). 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 the General Statutes. N.C.G.S.
§ 7B-1109(f). We review a trial court’s adjudication under N.C.G.S. § 7B-1109 “to
determine whether the findings are supported by clear, cogent and convincing
evidence and the findings support the conclusions of law.” In re Montgomery, 311 N.C.
101, 111, 316 S.E.2d 246, 253 (1984) (citation omitted).
Here, the trial court determined that there was sufficient evidence presented
to terminate respondent’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(5).
Neither party has challenged this portion of the trial court’s ruling, and this issue is
therefore not before us.
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IN RE: A.U.D. AND A.X.D.
Opinion of the Court
If a trial court finds one or more grounds to terminate parental rights under
N.C.G.S. § 7B-1111(a), it then proceeds to the dispositional stage. N.C.G.S. § 7B-
1110(a) states, in pertinent part, as follows:
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 . . . 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.
(6) Any relevant consideration.
N.C.G.S. § 7B-1110(a).
The trial court’s assessment of a juvenile’s best interests at the dispositional
stage is reviewed solely for abuse of discretion. In re D.L.W., 368 N.C. 835, 842, 788
S.E.2d 162, 167 (2016) (citing In re L.M.T., 367 N.C. 165, 171, 752 S.E.2d 453, 457
(2013); In re Montgomery, 311 N.C. at 110, 316 S.E.2d at 252). “[A]buse 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.” In re T.L.H., 368 N.C.
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IN RE: A.U.D. AND A.X.D.
Opinion of the Court
101, 107, 772 S.E.2d 451, 455 (2015) (citing State v. Hennis, 323 N.C. 279, 285, 372
S.E.2d 523, 527 (1988)).
Here, the trial court made the following findings of fact regarding the statutory
criteria set forth in N.C.G.S. § 7B-1110(a):
14. The twin girls were born May 5, 2017.
....
43. The children were placed with the PAF [prospective
adoptive family] in October 2017. The children have lived
with this family continuously, without interruption since
that time.
44. The PAF consists of a father, mother, and 2 biological
daughters, ages 8 and 5.
....
46. The PA [prospective adoptive] parents have completed
transracial adoption training and have tried to make the
home more culturally inclusive. Some examples are they
have provided all the children in their home with black
dolls and have placed culturally aware artwork in the
home. Additionally, the PA mom has worked to educate
church members on implicit bias.
47. The twins have a strong bond with the PAF, including
extended family like the grandparents, aunts, uncles, and
cousins – all of which live within 60 minutes of the PAF.
48. The PAF has participated in multiple activities with
the twins including dancing with them, taking them “trick-
or-treating,” and taking them on family trips.
49. [Respondent] has 3 other children. He received custody
of the oldest two kids. The oldest is with the child’s mother
after she fled the state and took the child with her
immediately following [respondent] being awarded
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IN RE: A.U.D. AND A.X.D.
Opinion of the Court
emergency custody. The middle child was placed in his
custody but [respondent] became incarcerated in prison for
about 3 years on another unrelated offense shortly
thereafter. [Respondent] has visitation rights to the
youngest child.
50. [Respondent] is incarcerated at a minimum security
prison. Since being incarcerated [respondent] has been
engaged in self-improvement training. [Respondent] has
successfully completed all the requirements in the
cognitive behavioral intervention curriculum called
“Thinking for A Change.” Also, [respondent] received a
passing grade and 4.5 continuing Education Units for “New
Beginnings: Employment Skills for Former Offenders.”
51. About one month ago, [respondent] began participating
in the work release program. [Respondent] has been
“infraction free” while in prison thus making him eligible
for the program. Before work release [respondent] worked
in the kitchen and made about $7 a week.
52. Presently, [respondent] makes $10 an hour. The money
he makes goes into a trust account that he only has access
to upon his release, or to pay for court ordered child support
or to maintain household bills while he is still incarcerated.
53. [Respondent] would like for [Amy and Ann] to be
placed with [Sarah]. He does not want his parental rights
terminated. He does not have any paternal relatives he
could recommend for placement of [the children].
54. [Sarah] is willing and able to provide placement for
[Amy and Ann] until [respondent] is released from prison.
She and her son reside in a very neat and tidy, two-
bedroom apartment, but she plans to move into a three-
bedroom apartment if the girls are placed with her. She is
employed full-time as a nurse’s assistant. . . . She earns
about $3361 per month. Currently, she is in a relationship
with an individual who was released from prison recently.
55. When [Amy and Ann] were placed with her, [Sarah] did
a good job caring for [the children]. There is no evidence
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IN RE: A.U.D. AND A.X.D.
Opinion of the Court
that she did not or could not care for them.
....
60. Although [Amy and Ann] were placed with the PAF in
October 2017, it was done solely at the behest of the mother
who relinquished her [parental] rights and chose the PAF
specifically. [BCS] accepted the relinquishment knowing
the whereabouts of [respondent] and without speaking
with him. After speaking with [respondent] they chose not
to return [Amy and Ann] to [Sarah] and there is no
evidence they even spoke to her or conducted a home study
of her home.
61. It is evident that [BCS] never had an intention of
returning the children to [Sarah] or giving [respondent] an
opportunity to parent [Amy and Ann] upon his release from
prison.
62. Although it is clear [respondent] created the
circumstances that led to his incarceration, it is also clear
that [Tanya] and [BCS] created the circumstances that led
to the girls living with the PAF for 14 months causing them
to bond to the PAF substantially. They now seek to benefit
from those same circumstances by arguing that it is in the
best interest of [Amy and Ann] to remain with the PAF
because of the substantial bond.
63. There is no doubt the PAF is taking adequate care of
[Amy and Ann] but permanently severing the legal
relationship between them and [respondent] and their
biological relatives may not be in the best interest of [Amy
and Ann] without further proof that such a relationship is
truly unsafe or that [respondent] has in fact neglected
[Amy and Ann]. Not only has [respondent] expressed a
desire to parent [Amy and Ann] but he has proactively
attempted to exercise that right through his diligent efforts
to legally establish paternity and have [Sarah] gain legal
custody.
64. It is not in the children’s best interest to terminate the
parental rights of [respondent].
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IN RE: A.U.D. AND A.X.D.
Opinion of the Court
BCS makes several arguments concerning the dispositional findings in the
trial court’s order. We first address BCS’s contention that the trial court’s written
findings did not adhere to the findings orally rendered at the conclusion of the
termination hearing. BCS asserts that the trial court made certain oral findings in
its favor regarding the statutory factors set forth in N.C.G.S. § 7B-1110(a) but then
omitted these findings from its written order.
Pursuant to Rule 58 of the North Carolina Rules of Civil Procedure, “a
judgment is entered when it is reduced to writing, signed by the judge, and filed with
the clerk of court.” N.C.G.S. § 1A-1, Rule 58 (2017). As our Court of Appeals has
correctly held, a trial court’s oral findings are subject to change before the final
written order is entered.3 See Morris v. Se. Orthopedics Sports Med. & Shoulder Ctr.,
P.A., 199 N.C. App. 425, 433, 681 S.E.2d 840, 846 (“The announcement of judgment
in open court is the mere rendering of judgment, and is subject to change before entry
of judgment.” (citation and internal quotation marks omitted)), disc. rev. denied, 363
N.C. 745, 688 S.E.2d 456 (2009). Thus, we conclude that respondent has failed to
show the existence of error based merely on the fact that there were differences
between the findings orally rendered at the hearing and those set forth in the written
order.
Indeed, we observe that at the conclusion of the hearing, the trial court clearly
3
indicated that it was still “contemplating” the evidence and that it intended to “mull” over
the case before reaching a decision, thus making it clear to the parties that its findings were
subject to change prior to final entry of judgment.
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IN RE: A.U.D. AND A.X.D.
Opinion of the Court
We next consider BCS’s contention that the trial court did not make sufficient
findings regarding the factors set forth in N.C.G.S. § 7B-1110(a). Specifically, BCS
argues that the trial court improperly failed to make findings of fact concerning the
likelihood of adoption; whether termination of respondent’s parental rights would aid
in the accomplishment of the permanent plan for the juveniles; and the bond between
the juveniles and respondent. See N.C.G.S. § 7B-1110(a)(2), (3), (4).
It is clear that a trial court must consider all of the factors in section 7B-
1110(a). Here, the transcript of the hearing demonstrates that the trial court did, in
fact, carefully consider each of the statutory criteria listed in N.C.G.S. § 7B-1110(a).
The statute does not, however, explicitly require written findings as to each factor.
Although the better practice would have been for the trial court to make written
findings as to the statutory factors identified by BCS, we are unable to say that the
trial court’s failure to do so under the unique circumstances of this case constitutes
reversible error.4
First, there was no conflict in the evidence regarding the likelihood of adoption.
Indeed, the sole purpose of the petition to terminate respondent’s parental rights was
so that Amy and Ann could be adopted by the prospective adoptive family. Second, it
was undisputed that no bond existed between respondent and the children. Third,
4 We do, however, take this opportunity to encourage trial courts to make written
findings on all of the statutory factors set out in N.C.G.S. § 7B-1110(a) in the dispositional
portions of orders ruling on petitions to terminate parental rights, so as to obviate arguments
in future cases that a written finding was not made on a “relevant” factor under the statute.
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IN RE: A.U.D. AND A.X.D.
Opinion of the Court
because this was a private termination proceeding, there was no “permanent plan”
for Amy and Ann within the meaning of N.C.G.S. § 7B-1110(a)(3). Accordingly, a
remand by this Court to the trial court for written findings on these uncontested
issues—a disposition for which our dissenting colleague appears to be advocating—
would be an elevation of form over substance and would serve only to delay the final
resolution of this matter for the children.
BCS also argues that the trial court erred in failing to give due consideration
to the report of the children’s guardian ad litem and her recommendation that
respondent’s parental rights be terminated. BCS contends that the guardian ad litem,
once appointed, is the “eyes and ears of the court” and that the trial court should have
relied at least in part on the report and testimony of the guardian ad litem in reaching
its decision.
The trial court’s order clearly states that it considered the report and testimony
of the guardian ad litem. The court, however, was not bound by that recommendation.
See In re D.L.W., 368 N.C. at 843, 788 S.E.2d at 167–68 (stating that it is the trial
judge’s duty to consider all the evidence, pass upon the credibility of the witnesses,
and determine the reasonable inferences to be drawn therefrom). Therefore, because
the trial court possesses the authority to weigh all of the evidence, the mere fact that
it elected not to follow the recommendation of the guardian ad litem does not
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IN RE: A.U.D. AND A.X.D.
Opinion of the Court
constitute error.5
Finally, BCS asserts that the trial court’s refusal to terminate respondent’s
parental rights was an arbitrary and capricious decision and constitutes an abuse of
discretion. We disagree.
Our Juvenile Code provides “procedures for the hearing of juvenile cases that
assure fairness and equity and that protect the constitutional rights of juveniles and
parents” and aims to “develop a disposition in each juvenile case that reflects
consideration of the facts, the needs and limitations of the juvenile, and the strengths
and weaknesses of the family.” N.C.G.S. § 7B-100(1), (2) (2017). One of the stated
policies of the Juvenile Code is to prevent “the unnecessary or inappropriate
separation of juveniles from their parents.” N.C.G.S. § 7B-100(4). However, although
parents have a constitutionally protected interest in the care and custody of their
children and should not be unnecessarily or inappropriately separated from their
children, “the best interests of the juvenile are of paramount consideration by the
court and . . . when it is not in the juvenile’s best interest to be returned home, the
juvenile will be placed in a safe, permanent home within a reasonable amount of
time.” N.C.G.S. § 7B-100(5); see also In re Montgomery, 311 N.C. at 109, 316 S.E.2d
5 BCS also asserts in its brief that the trial court’s decision not to terminate
respondent’s parental right was due to its “personal bias against [BCS], or perhaps adoption
agencies in general.” We decline, however, to review this claim. “In order to preserve an issue
for appellate review, a party must have presented to the trial court a timely request,
objection, or motion . . . .” N.C. R. App. P. 10(a)(1). Here, BCS did not move for Judge Cureton
to recuse himself from presiding over the case. Therefore, this issue was not preserved for
our review.
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IN RE: A.U.D. AND A.X.D.
Opinion of the Court
at 251 (“[T]he fundamental principle underlying North Carolina’s approach to
controversies involving child . . . custody [is] that the best interest of the child is the
polar star.”).
Here, the trial court carefully weighed the competing goals of (1) preserving
the ties between the children and their biological relatives; and (2) achieving
permanence for the children as offered by their prospective adoptive family. In
addition to the statutory factors set out in N.C.G.S. § 7B-1110(a)(1)–(5), the trial court
also considered other relevant circumstances—as it was permitted to do under
N.C.G.S. § 7B-1110(a)(6)—such as the fact that (1) Amy and Ann were relinquished
to BCS solely at the behest of their mother; (2) respondent was never afforded the
opportunity to parent Amy and Ann or provide for their care prior to their
relinquishment; (3) upon learning of Amy and Ann’s birth, respondent “proactively”
attempted to establish paternity; (4) respondent desired that Sarah gain legal custody
of the juveniles and Sarah was willing and able to provide a placement for Amy and
Ann until respondent was released from incarceration; and (5) Sarah had previously
cared for the juveniles and “did a good job” in doing so. The trial court further noted
the strides in self-improvement that respondent had made during his incarceration.6
To be sure, evidence existed that would have supported a contrary decision.
6 Oddly, despite acknowledging that the General Assembly has expressly authorized
trial courts through N.C.G.S. § 7B-1110(a)(6) to also consider “[[a]ny relevant consideration”
in addition to the factors enumerated in N.C.G.S. § 7B-1110(a)(1)–(5), the dissent then
proceeds to take the trial court to task for doing just that.
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IN RE: A.U.D. AND A.X.D.
Opinion of the Court
But this Court lacks the authority to reweigh the evidence that was before the trial
court. We are satisfied that the trial court’s conclusion that termination of
respondent’s parental rights was not in the children’s best interests was neither
arbitrary nor manifestly unsupported by reason.7 Our analysis must end there.
Conclusion
For the reasons stated above, we affirm the 20 December 2018 order of the trial
court denying BCS’s petition to terminate respondent’s parental rights.
AFFIRMED.
7Although the dissent asserts that the trial court erroneously focused its analysis on
the best interests of respondent, the trial court expressly found that the termination of
respondent’s parental rights would not be in the best interests of the children.
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Justice NEWBY dissenting.
The majority muddles the analysis between the adjudicatory stage and the
dispositional stage of termination of parental rights proceedings, inappropriately
considering fairness to the parent at a stage in the proceedings where the statutory
mandate says the best interests of the children should control. The trial court used
an unnaturally broad reading of the term “relevant” in the section 7B-1110(a)(6)
catchall provision while ignoring the requirement that it make written findings on
all statutorily mandated factors. See N.C.G.S. § 7B-1110(a) (2017). Because the
majority upholds the trial court’s misapplication of the relevant statute, these
children will be removed from the parents with whom they have bonded. I respectfully
dissent.
We review a trial court’s decision of whether to terminate parental rights for
abuse of discretion. In re Z.L.W., 831 S.E.2d 62, 64 (N.C. 2019). A trial court’s
misapplication of the law is an abuse of discretion. See Koon v. United States, 518
U.S. 81, 100, 116 S. Ct. 2035, 2047 (1996) (explaining that trial courts by definition
abuse their discretion when they make errors of law). The trial court below abused
its discretion because it misapplied the statutory scheme for terminating parental
rights. At the dispositional stage, when the statute requires trial courts to consider
only the children’s interests, the trial court improperly weighed factors related to a
parent’s interest, which may only be considered at the adjudicatory stage. Further,
the trial court did not make the required written findings on all relevant statutory
IN RE: A.U.D. AND A.X.D.
Newby, J., dissenting
criteria under section 7B-1110(a) as it determined the best interests of the children.
The trial court and the majority rewrite the carefully crafted statutory scheme,
where factors weighing in the father’s favor are properly considered only at the
adjudicatory stage, not the dispositional stage. This Court has held that North
Carolina’s statutory scheme adequately safeguards parents’ rights. See In re
Adoption of S.D.W., 367 N.C. 386, 394, 758 S.E.2d 374, 380 (2014) (explaining that
“North Carolina has adopted a statutory framework designed to protect both the
interests of biological fathers in their children and the children’s interest in prompt
and certain adoption procedures.”). In this case, respondent’s interests are
safeguarded by section 7B-1111(a) and the children’s interests are safeguarded by
section 7B-1110(a). See N.C.G.S. § 7B-1111(a) (2017). Section 7B-1111(a) controls the
adjudicatory stage, when the court determines whether grounds exist, based on
parents’ behavior, to terminate parental rights. It is the only stage where a parent’s
interests are considered. There is no dispute that grounds existed under that
provision to terminate respondent’s parental rights. The adjudicatory stage is
complete. The dispositional stage of the proceedings at issue here is controlled by
section 7B-1110(a), which is governed by the best interests of the children.
Section 7B-1110(a) establishes criteria for courts to consider when determining
whether it is in a child’s best interests to terminate a party’s parental rights. These
criteria include: (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
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Newby, J., dissenting
juvenile and the parent; (5) the quality of the relationship between the juvenile and
the proposed adoptive parent, guardian, custodian, or other permanent placement;
and (6) any relevant consideration. Id. At this stage, “any relevant consideration” is
constrained to those factors affecting the best interests of the children. A trial court
must consider each of these six criterion and must make written findings on all that
are “relevant.” Id.
The trial court appears to have mentioned each of the criteria listed in section
7B-1110(a), and, based on its own oral findings, every one of those criteria weighed
in favor of terminating the father’s parental rights. The majority seems to agree. The
guardian ad litem, who is uniquely tasked with understanding and advocating for the
children’s best interests, also believed respondent’s parental rights should be
terminated. The trial court, however, ignored all this. In considering criterion (6), the
catchall, the trial court packed its analysis with a number of legally irrelevant
considerations, and allowed those to outweigh all else.
The trial court, in both its oral and written findings, emphasized the following:
that the father never had the chance to develop a relationship with the children; that
the father’s failed paternity filing was not really his fault; and that the father had no
say in the development of the relationship between the children and the prospective
adoptive family. These considerations speak to whether terminating respondent’s
parental rights would be fair to him, not the best interests of the children.
Certainly section 7B-1110(a)(6) allows the court to consider “[a]ny relevant
consideration.” N.C.G.S. § 7B-1110(a)(6) (2017). But these three words should not be
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IN RE: A.U.D. AND A.X.D.
Newby, J., dissenting
read in a vacuum. Section 7B-1110(a) itself provides guidance. It explains that these
criteria help courts determine whether terminating parental rights is in the child’s
best interest. N.C.G.S. § 7B-1110(a) (directing courts to “determine whether
terminating the parent’s rights is in the juvenile’s best interest” by “consider[ing] the
[six] criteria”). So, “[a]ny relevant consideration” includes only those criteria bearing
on the children’s interests, particularly when section 7B-1100(3) unambiguously
elevates the children’s interests above any conflicting ones of a parent in the
proceedings. N.C.G.S. § 7B-1100(3) (2017) (“Action which is in the best interests of
the juvenile should be taken in all cases where the interests of the juvenile and those
of the juvenile’s parents or other persons are in conflict.”).
Some of the trial court’s additional considerations do pass the relevance test
under section 7B-1110(a). For example, the trial court noted that the children’s aunt
was willing and able to care for them. This consideration is relevant because it affects
the quality of the children’s lives if respondent’s parental rights are not terminated.
But the aunt’s willingness and capability alone fall far short of vindicating the
trial court’s misapplication of the statutory scheme. The trial court’s ability to assess
“[a]ny relevant consideration” allows some flexibility to examine the particulars of
each of the many diverse cases that come before it. It does not, however, give courts
unbridled discretion. Catchall provisions like this one should rarely, if ever, be
powerful enough to control the outcome when every other specifically enumerated
criterion would demand a different result. If it could, the General Assembly would
have no need to list any criteria and could simply place the decision in the unbridled
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IN RE: A.U.D. AND A.X.D.
Newby, J., dissenting
discretion of the trial court. Instead, the General Assembly has created a statutory
scheme that is much more precise. The trial court and the majority fail to properly
apply that scheme.
Relatedly, the trial court abused its discretion by failing to make the required
written findings on all “relevant” criteria under section 7B-1110(a). The majority
incorrectly assumes that “relevant” criterion are only those that are contested in the
particular case. That is incorrect. “Relevant” simply describes those criterion which
influence the trial court’s decision, even if the nature of the criteria are undisputed.
See Relevant, Black’s Law Dictionary (11th ed. 2019) (defining “relevant” as
“[l]ogically connected and tending to prove or disprove a matter in issue; having
appreciable probative value—that is, rationally tending to persuade people of the
probability or possibility of some alleged fact”).
In this case, criteria (1) through (5) are all relevant. The children are young,
they are likely to be adopted, adoption is part of their permanent plan, there exists
no bond between the children and respondent, and the children’s relationship with
the prospective adoptive parents is strong. In fact, the trial court identified all of these
criteria in the way just described. Every one of those criteria bear on whether it would
be in the children’s best interests to terminate the father’s parental rights—the only
issue in this case.
But it appears that the trial court omitted written findings on three out of the
five criteria. It found that the children are very young and that they have a strong
relationship with the adoptive parents, but failed to make findings under (2), (3), and
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IN RE: A.U.D. AND A.X.D.
Newby, J., dissenting
(4). See N.C.G.S. § 7B-1110. The trial court thus failed to follow the controlling statute
properly.
Though section 7B-1110(a) grants some discretion to trial courts, it
immediately directs that discretion down a specific path. The trial court did not stay
on that path. And on its detour, it diminished criteria it by statute must elevate.
Whereas the dispositional phase should be guided by the children’s best interests,
here the majority’s decision upholds the trial court’s subjective consideration of the
father’s rights.
For these reasons, I respectfully dissent.
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