In re E.F. ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 14A20
Filed 14 August 2020
IN THE MATTER OF: E.F., I.F., H.F., Z.F.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on
12 September 2019 by Judge Stephen Higdon in District Court, Union County. This
matter was calendared for argument in the Supreme Court on 29 July 2020 but
determined on the record and briefs without oral argument pursuant to Rule 30(f) of
the North Carolina Rules of Appellate Procedure.
Perry, Bundy, Plyler & Long, LLP, by Ashley J. McBride and Dale Ann Plyler,
for petitioner-appellee Union County Division of Social Services.
La-Deidre Matthews for appellee Guardian ad Litem.
David A. Perez for respondent-appellant.
NEWBY, Justice.
Respondent appeals from the trial court’s order (termination order)
terminating her parental rights in her minor children Ethan, Isaac, Henry, and
Zane.1 Because we conclude the trial court did not abuse its discretion by determining
that it was in the children’s best interests that respondent’s parental rights be
terminated, we affirm.
1 We use pseudonyms to protect the privacy of the juveniles discussed in this opinion.
IN RE E.F., I.F., H.F., Z.F.
Opinion of the Court
Ethan was born in January 2011. His father is Jamie R. Dallas W. is the father
of respondent’s twins, Isaac and Henry, born in September 2012, and of Zane, born
in April 2014. On 19 February 2018, the Union County Division of Social Services
(DSS) filed a juvenile petition alleging neglect and dependency. On 26 March 2018,
DSS obtained nonsecure custody of the four children. The trial court adjudicated the
children to be neglected and dependent juveniles on 22 August 2018.
In support of the adjudication, the trial court found that respondent left the
children with Dallas W. when she was arrested on 6 March 2018; that Dallas W.
subsequently placed the children with Angela S., a caretaker for the children, because
he was unable to care for them; and that Angela S. was unable to obtain necessary
medical care for the children because she lacked their Medicaid information and
parental authorization. The trial court further found that the family had a history of
instability and inadequate housing; that respondent had been evicted from her
residence and was unable to secure suitable housing; and that respondent was
unemployed, suffered from untreated mental health issues, and had expressed no
willingness to engage in remedial services for herself or her children. Respondent
signed a DSS case plan agreeing to complete parenting classes and domestic violence
counseling and comply with all recommendations, submit to a mental health and
substance abuse assessment and comply with all recommendations, submit to
random drug screens, and obtain and maintain stable employment and housing.
DSS filed a petition to terminate the parental rights of respondent, Jamie R.,
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Opinion of the Court
and Dallas W. on 19 February 2019. At the time, Dallas W. was incarcerated. None
of the parents filed an answer to the termination petition. See N.C.G.S. § 7B-1107
(2019). After a series of continuances, the trial court convened a hearing on the
termination petition on 21 August 2019. Counsel for DSS advised the trial court that
it was proceeding only against respondent and Jamie R. and that it was not
proceeding against Dallas W. at that time.
At the adjudicatory stage of the termination hearing, the trial court heard
testimony from respondent, her DSS social worker, and Angela S., who had served as
the children’s foster care placement since their entry into DSS custody in March 2018.
Respondent testified that she was unemployed, homeless, and using heroin daily,
including on the morning of the termination hearing. She had been arrested five
times since March 2018 and was awaiting trial on pending charges. Despite paying
for her heroin habit, respondent had contributed nothing toward the children’s cost
of care while they were in DSS custody. Respondent acknowledged she was “unstable
and unfit and that [she] need[ed] help.” The trial court concluded there were grounds
to terminate respondent’s parental rights for neglect, failure to pay a reasonable
portion of the children’s cost of care, and dependency. N.C.G.S. § 7B-1111(a)(1), (3),
(6) (2019). The trial court also found grounds to terminate the parental rights of
Jamie R.
At the dispositional stage, the trial court received written reports from DSS
and the children’s guardian ad litem (GAL) and heard testimony from the social
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IN RE E.F., I.F., H.F., Z.F.
Opinion of the Court
worker and the GAL. In accordance with the recommendations of DSS and the GAL,
the trial court concluded that terminating the parental rights of respondent and
Jamie R. was in the best interests of their respective children. The trial court entered
its written termination order on 12 September 2019. Respondent filed notice of
appeal.2
Respondent does not challenge the grounds for termination adjudicated by the
trial court under N.C.G.S. § 7B-1111(a), but argues that the trial court abused its
discretion in concluding it was in the children’s best interests that respondent’s
parental rights be terminated. “An abuse of discretion is a decision manifestly
unsupported by reason or one so arbitrary that it could not have been the result of a
reasoned decision.” In re K.N.K., 374 N.C. 50, 57, 839 S.E.2d 735, 740 (2020) (quoting
Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998)). The trial court’s
dispositional findings are binding on appeal if they are supported by any competent
evidence. Id. We are likewise bound by all uncontested dispositional findings. In re
Z.L.W., 372 N.C. 432, 437, 831 S.E.2d 62, 65 (2019).
The dispositional stage of a proceeding to terminate parental rights is governed
by N.C.G.S. § 7B-1110(a), which provides as follows:
(a) 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
2 There is no indication that Jamie R. appealed the termination order, and he is not a
party to this appeal.
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IN RE E.F., I.F., H.F., Z.F.
Opinion of the Court
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) (2019). Although the trial court must “consider” each of the
statutory factors, id., we have construed subsection (a) to require written findings
only as to those factors for which there is conflicting evidence. In re A.R.A., 373 N.C.
190, 199, 835 S.E.2d 417, 424 (2019).
The trial court’s termination order expressly states that the trial court
“considered all factors set out in N.C.G.S. [§] 7B-1110 in determining whether
terminati[ng] the parental rights of [respondent] to her children” is in their best
interests. The trial court made written findings about each of the criteria in N.C.G.S.
§ 7B-1110(a)(1)–(5) as follows:
(A) The age of the juveniles: [Zane] is 5 Years and 4
Months, [Henry] and [Isaac] are 7 Years and 11
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Opinion of the Court
Months, [Ethan] is 8 Years and 7 Months.
(B) The likelihood of adoption of the juveniles: The
juveniles’ [foster] placement wants to adopt the
juveniles. There is a high likelihood of adoption.
(C) Whether the termination of parental rights will aid
in the accomplishment of the permanent plan for the
juveniles: The permanent plan for the juveniles is
adoption. Termination of [respondent’s] and Jamie
R[.’s] parental rights will aid in [the]
accomplishment of the permanent plan of adoption.
(D) The bond between the juveniles and their parent:
The juveniles do not have a good bond with
[respondent]. [Respondent’s] own action contributed
to the court staying her visitation with the juveniles
[on 22 August 2018]. The lack of visitation has
affected the bond between the children and their
mother.
(E) . . . The quality of the relationship between the
juveniles and the proposed adoptive parents: The
juveniles and Angela S[.] and her family have a
strong bond. The S[.’s] have tended to all of the
juveniles’ well-being needs. They have provided a
safe, stable and loving home to the juveniles since
being placed in the S[.] home around March of 2018.
The S[.’s] intend to adopt the juveniles.
To the extent that respondent does not contest these findings, they are binding. See
In re Z.L.W., 372 N.C. at 437, 831 S.E.2d at 65.
Specifically, respondent argues these findings fail to account for the fact that
DSS did not proceed against Dallas W. at the termination hearing, thereby leaving
intact his parental rights in Isaac, Henry, and Zane. Because Dallas W. retained his
parental rights in these children, respondent contends the evidence did not show a
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Opinion of the Court
high likelihood that they would be adopted or that terminating her parental rights
would facilitate their adoption. Respondent did not raise Dallas W.’s parental rights
or their impact on the prospects for adoption as an issue during the dispositional
hearing.
The record shows only that DSS filed a petition to terminate his parental
rights, but was not proceeding against him at the termination hearing.3 The fact that
Dallas W.’s parental rights remained in place at the time of the termination hearing
does not render the trial court’s findings under N.C.G.S. § 7B-1110(a)(2)–(3)
erroneous. Subsection (a)(2) refers to the “likelihood”—not the certainty—of the
children’s adoption. N.C.G.S. § 7B-1110(a)(2). Similarly, subsection (a)(3) asks
whether terminating respondent’s parental rights would “aid in the accomplishment
of the permanent plan for the juvenile[s].” N.C.G.S. § 7B-1110(a)(3) (emphasis
added). Unquestionably, the termination of respondent’s parental rights was a
necessary precondition of the children’s adoption.
Moreover, the DSS social worker attested to the high likelihood of the
children’s adoption and to the fact that terminating respondent’s parental rights
would aid in realizing the permanent plan of adoption. The social worker further
3 The record on appeal includes a “Notice of Dismissal of Petit[io]n for Termination of
Parental Rights” filed in the trial court by DSS on 11 October 2019. The notice of dismissal
states that Dallas W. had relinquished his parental rights in Isaac, Henry, and Zane and that
“the time for revocation has expired.” It appears this document may not have been before the
trial court at the time of the termination hearing on 21 August 2019.
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Opinion of the Court
advised the trial court that Dallas W. had made no effort to regain custody of his
children and wanted Angela S. to adopt them. The GAL reported that Angela S. and
her spouse “have gone through the licensing procedure to be able to adopt the children
and have expressed a strong desire to do so.” This competent evidence is sufficient to
support the trial court’s findings as to the likelihood of adoption. In the absence of an
evidentiary conflict, the trial court is not required to make written findings under
N.C.G.S. § 7B-1110(a)(6) on this issue. See In re A.R.A., 373 N.C. at 199, 835 S.E.2d
at 424.
Respondent makes a similar argument regarding the availability of her own
maternal grandmother, Linda R., as a potential guardian for the children. Although
the GAL’s written report included a bare statement that Linda R. “has been approved
for consideration of guardianship/adoption of the children, and the home has been
approved by DSS,” Linda R. is only mentioned once during the adjudicatory stage of
the termination proceeding. We recognize the trial court may—and should—consider
evidence introduced during the adjudicatory stage of a termination hearing in
determining the children’s best interests during the disposition stage. See In re Pierce,
356 N.C. 68, 71–72, 75–76, 565 S.E.2d 81, 84, 86 (2002); In re M.A.I.B.K., 184 N.C.
App. 218, 225, 645 S.E.2d 881, 886 (2007). Respondent, however, made no reference
to Linda R. or any other alternative placement for the children at the disposition
stage, during which the sole focus was upon identifying the best possible outcome for
the children. See N.C.G.S. § 7B-1110(a)–(b); see also In re Pierce, 356 N.C. at 76, 565
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Opinion of the Court
S.E.2d at 86 (characterizing the “determination of best interests [a]s more in the
nature of an inquisition” than an adversarial process).
Respondent testified only that her grandparents “want” her children and
would allow respondent to “live with them once [she is] clean and once [she has]
treatment and everything.” Absent additional evidence regarding Linda R.’s
willingness or ability to provide permanence for respondent’s children, the trial court
cannot be said to have erred even if, arguendo, it failed to consider Linda R. as a
placement option. Cf. In re S.D.C., 373 N.C. 285, 290, 837 S.E.2d 854, 858 (2020)
(explaining “the extent to which it is appropriate” for the trial court to consider a
relative placement for a child under N.C.G.S. § 7B-1110(a)(6) is “dependent upon the
extent to which the record contains evidence tending to show whether such a relative
placement is, in fact, available”).
DSS and the GAL presented undisputed evidence that Angela S. and her
husband had provided excellent care for respondent’s four children since March 2018
and wished to provide them a permanent home through adoption. Because
respondent did not present evidence about Linda R. to contradict the evidence that
DSS and the GAL presented, the trial court was not obligated to make written
findings about Linda R. under N.C.G.S. § 7B-1110(a)(6). See In re A.R.A., 373 N.C. at
199, 835 S.E.2d at 424.
Finally, we hold that respondent has failed to show the trial court abused its
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Opinion of the Court
discretion under N.C.G.S. § 7B-1110(a) by concluding it was in the children’s best
interests to terminate her parental rights. The termination order reflects the trial
court’s consideration of the statutory dispositional factors. Its findings are supported
by the evidence. Its assessment of the children’s best interests arises rationally from
its findings of fact and is consistent with the recommendation of the children’s GAL.
Accordingly, we affirm.
AFFIRMED.
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