Opinion
No. COA09-1470
Filed 20 April 2010 This case not for publication
On writ of certiorari to review order entered 18 May 2009 by Judge L. Dale Graham in District Court, Iredell County. Heard in the Court of Appeals 22 March 2010.
Lauren Vaughan for Petitioner-Appellee Iredell County Department of Social Services. Jon W. Myers for Respondent-Appellant Mother. Pamela Newell Williams for Guardian ad Litem.
Iredell County No. 07 JT 115.
Respondent-Mother appeals from the trial court's order terminating her parental rights to her two-year-old daughter, B.C.M. We affirm.
The Iredell County Department of Social Services (DSS) filed a juvenile petition on 29 June 2007 alleging that six-month-old B.C.M. was a neglected and dependent juvenile. The petition was based on several events that had occurred since B.C.M.'s birth, including the following allegations: (1) when B.C.M. was less than a week old, Respondent-Mother wrapped B.C.M. in a heating pad; (2) Respondent-Mother used ice-cold water to wake B.C.M.; and (3) Respondent-Mother improperly cared for B.C.M.'s newborn rash. The petition also alleged that law enforcement had contacted DSS on 3 April 2007 because Respondent-Mother was being arrested and refused to make a plan for the care of B.C.M., who was only a few months old. Respondent-Mother was later placed under house arrest. The petition further alleged that police found Respondent-Mother stumbling and falling down in downtown Statesville in her nightgown and covered in paint on 29 June 2007. She had left B.C.M. with a twelve-year-old half-sibling and an unrelated male boarder. An empty prescription bottle of Klonopin was found in Respondent-Mother's apartment. The bottle label indicated that the prescription had been filled with 30 pills on 15 June 2007, with instructions to take one pill per day. When Respondent-Mother was asked where she was employed, she stated that she was a prostitute. DSS contacted several relatives to care for B.C.M., but none were able or willing to do so. Additionally, Respondent-Mother had several DWI convictions, and she admitted to a history of cocaine, alcohol, and prescription drug abuse. The petition also alleged that Respondent-Mother had moved six times since B.C.M.'s birth. The trial court entered a nonsecure custody order granting custody of B.C.M. to DSS on 29 June 2007.
The trial court conducted an adjudication and disposition hearing on 11 September 2007. In an order entered 2 October 2007, the trial court adjudicated B.C.M. neglected and dependent. Respondent-Mother consented to an adjudication based on the facts alleged in the petition, with several amendments agreed upon by both parties. Respondent-Mother admitted that she had moved six times since the birth of B.C.M., but she indicated she had moved frequently in order to help her grandmother. The parties agreed to strike the entire paragraph detailing Respondent-Mother's improper care of B.C.M. as a newborn. Additionally, Respondent-Mother claimed that, when the police found her in downtown Statesville, she was wearing a swimsuit coverup and was joking when she stated that she was a prostitute. The trial court found the remaining allegations contained in the petition to be true, and it adjudicated B.C.M. neglected and dependent. The trial court also found that the father of B.C.M. was unknown.
The trial court entered a disposition order that continued custody of B.C.M. with DSS and adopted a permanent plan of reunification with Respondent-Mother. In the disposition order, the trial court found that Respondent-Mother had entered into a case plan with DSS and had developed a visitation plan on 1 August 2007. The trial court ordered Respondent-Mother to continue to comply with the case plan, to pay child support, to complete parenting classes, and to maintain employment. The trial court also found that B.C.M. had been placed with a foster family and was thriving in that placement.
During the next six months, Respondent-Mother made some progress on her case plan. She completed substance abuse classes, received negative drug screens, attended counseling, regularly visited B.C.M., and completed parenting classes. She also completed a psychiatric consultation and was diagnosed as being alcohol-dependent and as having Major Depressive Disorder. Respondent-Mother obtained employment at a restaurant but only kept that job a few months. She then began cleaning houses with her cousin.
At the time of the 27 May 2008 review hearing, Respondent-Mother continued to make progress on part of her case plan, but she was unable to maintain steady, gainful employment and began drinking again. Respondent-Mother also began working as an exotic dancer. She was arrested at work on 9 March 2008, and she admitted to a social worker that she had been drinking that night. She was not forthcoming with DSS regarding any other information related to her arrest. Also, Respondent-Mother was not taking care of B.C.M.'s medical needs. B.C.M. had been diagnosed with an eye condition, congenital estropia, and needed surgery to correct the condition. However, Respondent-Mother attended an appointment with B.C.M.'s physician and vocally opposed the surgery. As a result, B.C.M.'s physician postponed the surgery, but indicated that it needed to be performed as soon as possible. The physician also stated that eyeglasses would not correct B.C.M's condition.
The trial court held a permanency planning hearing on 24 June 2008 and, in an order entered 8 July 2008, the trial court ceased reunification efforts with Respondent-Mother and changed the permanent plan to termination of parental rights and adoption. Respondent-Mother had been arrested on 29 May 2008 for causing a disturbance at the club where she was employed as an exotic dancer, and was charged with resisting arrest. Respondent-Mother was given a breathalyzer test, registering 0.13 on one occasion during that time. In the permanency planning order, the trial court acknowledged that Respondent-Mother had made some progress, but found that she was still abusing alcohol, affecting her ability to provide care to B.C.M.
DSS filed a petition to terminate Respondent-Mother's parental rights to B.C.M. on 12 September 2008, alleging the following grounds: (1) neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1); (2) willfully leaving B.C.M. in foster care for over twelve months without showing reasonable progress in correcting the conditions which led to B.C.M.'s removal pursuant to N.C. Gen. Stat. § 7B-1111(a)(2); and (3) willfully failing to pay a reasonable portion of the cost of care for the juvenile pursuant to N.C. Gen. Stat. § 7B-1111(a)(3). DSS also sought to terminate the unknown father's parental rights to B.C.M., alleging: (1) failure to establish paternity, legitimate, or provide support or care for B.C.M. pursuant to N.C. Gen. Stat. § 7B-1111(a)(5); and (2) willful abandonment pursuant to N.C. Gen. Stat. § 7B-1111(a)(7).
The trial court conducted a termination of parental rights hearing on 7 and 16 January 2009. In an order entered 18 May 2009, the trial court found that three grounds existed for termination of Respondent-Mother's parental rights. At disposition, the trial court concluded that it was in B.C.M.'s best interests to terminate Respondent-Mother's parental rights. The trial court also terminated the unknown father's parental rights.
It is well-established that termination of parental rights proceedings involve a two-stage process: (1) the adjudication stage, where the petitioner is required to prove the existence of grounds for termination by clear, cogent, and convincing evidence, and (2) the disposition stage, where the trial court's decision as to whether to terminate parental rights is discretionary. N.C. Gen. Stat. §§ 7B-1111, 1110 (2007); In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38, disc. review denied, 318 N.C. 283, 347 S.E.2d 470 (1986). Respondent-Mother does not challenge the trial court's conclusions that grounds existed to terminate her parental rights to B.C.M. Nor does she make any other challenges to the adjudicatory stage of proceedings. Therefore, the trial court's adjudication of grounds for termination is binding on appeal.
Instead, all of Respondent-Mother's questions presented are challenges to the dispositional stage. After an adjudication determining that grounds exist for terminating parental rights, the trial court is required to consider the following factors in determining whether termination is in the juvenile's best interest:
(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. Gen. Stat. § 7B-1110(a) (2007). Our standard of review for the trial court's determination that termination of Respondent-Mother's parental rights was in the best interests of B.C.M. is abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). "Abuse of discretion exists when `the challenged actions are manifestly unsupported by reason.'" Barnes v. Wells, 165 N.C. App. 575, 580, 599 S.E.2d 585, 589 (2004) (citation omitted).
In its order, the trial court made the following findings of fact, which specifically address a portion of the criteria listed in N.C. Gen. Stat. § 7B-1110(a):
27. That an entry of an order terminating parental rights of the parents would not result in an unnecessary severance of the relationship between the biological parents to [B.C.M.].
. . . .
31. The reports of the Social Worker and the Guardian ad Litem were received into evidence for the purpose of disposition; these reports are attached to this order and incorporated herein by reference.
32. That the [c]ourt has considered the age of [B.C.M.], which is 25 months old.
33. That [B.C.M.] has lived with her foster parents . . . for at least (18) months.
34. That [B.C.M.'s] foster parents . . . wish to adopt [B.C.M.] if she becomes legally free.
35. That [B.C.M.] is in an excellent placement where she is well-cared for. She has a familial bond of mutual love and affection with her foster parents.
Respondent-Mother argues that the trial court failed to make "appropriate" findings of fact. She contends that finding number twenty-seven, the only finding dealing with the relationship between Respondent-Mother and B.C.M., is not sufficient to demonstrate that the trial court followed its mandate to consider "[t]he bond between [B.C.M.] and [Respondent-Mother]," pursuant to N.C. Gen. Stat. § 7B-1110(a)(4). Respondent-Mother argues, therefore, that this finding is not sufficient to support the trial court's determination that "terminating [Respondent-Mother's] rights [was] in [B.C.M.'s] best interest." N.C. Gen. Stat. § 7B-1110(a). Finding of fact number twenty-seven states: "That an entry of an order terminating parental rights of the parents would not result in an unnecessary severance of the relationship between the biological parents to [B.C.M.]." Respondent-Mother argues that finding of fact number twenty-seven is not sufficient to comply with the statutory requirement because it touches only on Respondent-Mother's "relationship" with B.C.M., instead of the "bond" between Respondent-Mother and B.C.M. Although this finding of fact does not use the precise language of N.C. Gen. Stat. § 7B-1110(a)(4), we find that it is sufficient to demonstrate that the trial court followed the statutory mandate. N.C. Gen. Stat. § 7B-1110(a) does not state that the trial court must recite the statutory language verbatim in its findings. It only states that the trial court must consider the factors. The trial court's finding is sufficient to demonstrate that the trial court considered this factor.
Moreover, we have previously found that it is not an abuse of discretion for the trial court to omit a finding on a statutory factor, so long as it is apparent that the trial court considered all relevant factors. See In re S.C.H., ___ N.C. App. ___, ___, 682 S.E.2d 469, 475 (2009) (holding that the trial court did not abuse its discretion where there was no specific finding regarding the bond between the parent and the child). In light of B.C.M.'s age, the amount of time she has been in foster care, and finding of fact number twenty-seven, it is apparent the trial court properly considered the bond between Respondent-Mother and B.C.M. in terminating Respondent-Mother's parental rights. Therefore, we conclude that the trial court did not abuse its discretion.
Respondent-Mother also argues that the trial court abused its discretion in failing to make findings of fact related to Respondent-Mother's struggles with alcohol. Respondent-Mother admitted that she had an alcohol abuse problem but contended that she had been trying to improve her situation. Based on our review of the trial court's findings of fact, the trial court was clearly aware of Respondent-Mother's alcohol abuse history, including her attempts at recovery. Shortly after entering into a case plan with DSS, Respondent-Mother appeared to be on the right track. However, in the months prior to the filing of the termination petition, Respondent-Mother's situation substantially changed. Respondent-Mother failed to attend counseling on a regular basis and had at least two alcohol-related arrests. Although Respondent-Mother testified that she had grown as a person and realized that her alcohol abuse was "self-destructive," the trial court ultimately made the discretionary decision, based on consideration of the statutory factors, that it was in B.C.M.'s best interests to terminate Respondent-Mother's parental rights.
Finally, Respondent-Mother argues that, in its order, the trial court abused its discretion by allegedly delegating its fact-finding duty and incorporating written reports from DSS and the GAL. Respondent-Mother relies on In re Harton, 156 N.C. App. 655, 577 S.E.2d 334 (2003), for her argument. In Harton, our Court acknowledged that the trial court may not simply incorporate the allegations against a parent, but it must make clear that it has found the ultimate facts necessary to support its conclusions of law based upon its own reasoning and analysis. Id. at 660, 577 S.E.2d at 337 (citations omitted). The trial court in Harton did not make sufficient independent findings of fact and our Court vacated the trial court's permanency planning order, explaining:
[T]he trial court in its findings of fact in the Permanency Planning Review Order found that [the mother] had no intention of separating from [her boyfriend] and adopted DSS and guardian ad litem reports as the remaining facts. The trial court, however, made no findings of fact under the specific criteria provided in section 7B-907(b). By stating a single evidentiary fact and adopting DSS and guardian ad litem reports, the trial court's findings are not "specific ultimate facts . . . sufficient for this Court to determine that the judgment is adequately supported by competent evidence." Anderson, 151 N.C. App. at 97, 564 S.E.2d at 602 (internal quotations omitted) (citation omitted).
Id. at 660, 577 S.E.2d at 337. In the case before us, the trial court did not "simply recite allegations" or find "a single evidentiary fact." Instead, the trial court employed a process of "logical reasoning," which is evidenced through its findings of fact. The trial court made at least five independent dispositional findings of fact and, in doing so, addressed all the pertinent statutory factors. Therefore, we find Respondent-Mother's reliance on Harton misplaced.
We acknowledge that the trial court also incorporated, by reference, the reports from DSS and the GAL at disposition. However, such incorporation was permissible and did not result in a delegation of the trial court's fact-finding duty. We have held that a trial court may consider a DSS report as evidence and incorporate it by reference, so long as the trial court does not use the DSS report as a substitute for its own independent review. In re K.S., 183 N.C. App. 315, 324, 646 S.E.2d 541, 545 (2007); In re D.L., 166 N.C. App. 574, 582-83, 603 S.E.2d 376, 382 (2004). Therefore, we conclude that the trial court did not delegate its fact-finding duty. The trial court did not abuse its discretion in concluding that terminating Respondent-Mother's parental rights was in B.C.M.'s best interests.
Affirmed.
Judges HUNTER and ERVIN concur.
Report per Rule 30(e).