Opinion
No. COA10-1511
Filed 17 May 2011 This case not for publication
Appeal by respondent-mother from order entered 26 August 2010 by Judge Rebecca B. Knight in Buncombe County District Court. Heard in the Court of Appeals 26 April 2011.
Matthew J. Putnam for petitioner-appellee Buncombe County Department of Social Services. Ryan McKaig for respondent-appellant mother. Michael N. Tousey for guardian ad litem.
Buncombe County No. 09 JA/JT 336.
Where the trial court did not err by concluding that it was in the best interests of the minor child that the parental rights of respondent-mother be terminated, we affirm the trial court.
Facts and Procedural History
On 26 October 2009, the Buncombe County Department of Social Services (DSS) filed a juvenile petition alleging that J.A.S., born 28 June 2007 and age two at the time, was a neglected and dependent juvenile. The petition alleged that DSS had a significant history with respondent-mother: respondent-mother had a history of substance abuse and used drugs in front of her children; respondent-mother's boyfriend assaulted her in the presence of her children; and the boyfriend had an extensive criminal history. According to the petition, respondent-mother had recently been convicted of felony identity theft, was on intensive probation, and was enrolled in criminal drug court. The petition further alleged that, on 24 October 2009, the drug court judge had held respondent-mother in contempt of court and had imposed a two-week sentence in the county jail. According to the petition, respondent-mother allowed her boyfriend to care for J.A.S. while she was incarcerated, and the boyfriend had refused to relinquish custody of J.A.S. DSS therefore obtained nonsecure custody of J.A.S. through court order.
Initials have been used throughout to protect the identity of the juvenile.
The trial court conducted an adjudication and disposition hearing on 10 December 2009. Respondent-mother did not attend the hearing. She had been mistakenly released from jail and her whereabouts were unknown. In an order entered 11 January 2010, the trial court adjudicated J.A.S. neglected and dependent, finding as fact a majority of the allegations contained in the petition. In the dispositional portion of the order, the trial court found that J.A.S. was doing well in his foster care placement. Therefore, the trial court found that it was in the best interest of J.A.S. to remain in DSS custody.
By the time of a permanency planning hearing on 18 March 2010, respondent-mother had been apprehended and incarcerated. Authorities found respondent-mother with her boyfriend, despite court orders prohibiting respondent-mother from having contact with him. J.A.S., on the other hand, was doing well in his foster care placement and had bonded to his foster parents. Based on the foregoing, the trial court relieved DSS of reunification efforts and changed the permanent plan for J.A.S. to adoption.
On 7 May 2010, DSS filed a petition to terminate respondent-mother's parental rights to J.A.S. based on the following grounds: (1) neglect, pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (2009); (2) willful failure to pay a reasonable portion of the cost of care for the juvenile, pursuant to N.C. Gen. Stat. § 7B-1111(a)(3) (2009); and (3) willful abandonment, pursuant to N.C. Gen. Stat. § 7B-1111(a)(7) (2009). Respondent-mother filed an answer on 13 July 2010, admitting a number of factual allegations and denying the material allegations pertaining to the asserted grounds for termination. DSS also sought to terminate the parental rights of J.A.S.'s biological father, and he relinquished his parental rights to J.A.S. on 9 July 2010.
On 2 August 2010, the trial court conducted a termination of parental rights hearing as to J.A.S. Respondent-mother was still in prison at the time, with a release date of August 2011, but was able to attend the hearing. At the hearing, respondent-mother stipulated to the admitted factual allegations. The trial court then heard testimony from DSS social worker Angie Buchanan and from respondent-mother. In an order entered 26 August 2010, the trial court found the existence of all three grounds for termination alleged by DSS. In addition to the stipulated facts, the trial court found that respondent-mother had not completed substance abuse treatment, had not participated in domestic violence services or mental health treatment, had not seen J.A.S. since 23 October 2009, had a twenty-year history of substance abuse, and had not provided any financial support to J.A.S. At disposition, the trial court concluded that it was in J.A.S.'s best interests to terminate respondent-mother's parental rights. From this order, respondent-mother appeals.
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The sole issue on appeal is whether the trial court erred in determining that termination of respondent-mother's parental rights was in the best interests of J.A.S. Respondent-mother acknowledges that the trial court properly considered the factors cited under N.C. Gen. Stat. § 7B-1110 but argues that the facts of her case do not support the trial court's decision to terminate her parental rights. She contends that merely establishing that grounds exist to authorize termination "does not necessitate a conclusion that termination is in the child's best interests." Respondent-mother argues that in light of the legal presumption protecting the family unit and her efforts to become a sober, improved parent, the trial court erred in its determination that termination of her parental rights was in J.A.S.'s best interests. We disagree.
Because Respondent-mother does not make any challenges to the adjudicatory stage of proceedings, the trial court's adjudication of grounds for termination is binding on appeal. See In re Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988) . Instead, respondent-mother only challenges the dispositional stage of the proceedings. After an adjudication hearing in which the court determined that grounds exist for terminating parental rights, the 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) (2009); In re S.C.H., 199 N.C. App. 658, 666-67, 682 S.E.2d 469, 474 (2009), aff'd per curiam, 363 N.C. 828, 689 S.E.2d 858 (2010). We review the trial court's determination that a termination of parental rights is in the best interests of the juvenile for an 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) (quoting Blankenship v. Town and Country Ford, Inc., 155 N.C. App. 161, 165, 574 S.E.2d 132, 134 (2002)).
In its order, the trial court made the following findings of fact:
1. SW Buchanan and the respondent mother testified at this portion of the hearing, and the court made findings of fact based on their testimony.
2. The respondent mother is present and it is apparent she loves her son. The respondent mother wants to be a good mother, and the court commends her for her desire to provide care for her son; however, the respondent mother's long-standing substance abuse issues, over more than twenty (20) years, has interfered with the respondent mother's ability to be an appropriate parent.
3. The respondent mother has been victimized many times as a result of her substance abuse. The respondent mother's relationship with [her boyfriend] is very damaging to both her and the minor child.
4. The minor child's mental health is being addressed in therapy and he is currently placed in a foster home that is committed to meeting his mental health needs. The foster parents have expressed a desire to adopt the minor child and the foster family has a strong bond.
5. The foster family has a desire for the respondent mother's family to remain involved with the minor child, and the minor child is in a very good situation. The foster family also appears to be willing to have the respondent mother involved; however, the respondent mother will be incarcerated for another year, and she has been incarcerated for much of the minor child's life. The minor child does not have a bond with the respondent mother.
6. The minor child is in an appropriate placement where his needs are being met. He is doing well in this placement.
7. The minor child . . . is three years old. The likelihood of the minor child being adopted is high.
8. The likelihood of the current placement providers adopting the minor child is high, and the minor child has a great relationship with the placement providers and he feels safe and comfortable with them.
9. That the minor child's permanent plan is adoption and, therefore, the respondent mother's parental rights must be terminated in order to accomplish that plan.
After careful review, it is evident that the trial court adequately considered the factors enumerated under N.C.G.S. § 7B-1110(a) and made appropriate findings of fact to determine what disposition was in the best interests of J.A.S. In addition, finding of fact numbers 2 and 3 touch on other relevant considerations, namely respondent-mother's substance abuse, her damaging relationship with her boyfriend, her love for her son, and her desire to provide care for him.
Respondent-mother argues that the bond between parent and child and respondent-mother's efforts to improve her life require a different disposition. We disagree. Though these factors weigh in respondent-mother's favor, in its role as fact-finder, the trial court determined that, regardless of respondent-mother's love for her son, it was in J.A.S.'s best interests to be in a safe, stable home with foster parents who are able to address his mental health needs. See In re C.L.C., 171 N.C. App. 438, 448, 615 S.E.2d 704, 709 (2005) (finding that the trial court was entitled to determine whether "other facts" outweighed the presence of a bond between mother and child), aff'd per curiam and disc. review improvidently allowed, 360 N.C. 475, 628 S.E.2d 760 (2006).
Respondent-mother also argues that the trial court failed to acknowledge her constitutionally protected right as a parent. She contends that "[i]n light of the strong legal presumption protecting the family unit, and in light of [respondent-mother's] attempts to get clean and become a better parent, the trial court erred in determining that termination of her parental rights was in [J.A.S.'s] best interests." "[I]t is well settled that a constitutional issue not raised in the lower court will not be considered for the first time on appeal." In re S.C.R., 198 N.C. App. 525, 530, 679 S.E.2d 905, 908 (2009) (citation omitted) . However, assuming arguendo that we consider the merits of her argument, although respondent-mother is correct in her assertion that parents have constitutional rights to the custody, care, and control of their children, she fails to recognize that these rights may be forfeited. Price v. Howard, 346 N.C. 68, 81, 484 S.E.2d 528, 536 (1997) (citations omitted). "[A] natural parent may lose [her] constitutionally protected right to the control of [her] children in one of two ways: (1) by a finding of unfitness of the natural parent, or (2) where the natural parent's conduct is inconsistent with [] her constitutionally protected status." David N. v. Jason N., 359 N.C. 303, 307, 608 S.E.2d 751, 753 (2005). If a trial court finds that a parent is unfit or has acted inconsistently with her constitutionally protected status, the court may then apply a best interest determination in a custody dispute between a parent and nonparent. In re B.G., 197 N.C. App. 570, 574, 677 S.E.2d 549, 552 (2009).
Further, respondent-mother argues that "the existence of grounds, alone, does not necessitate a conclusion that termination is in the child's best interests." We have previously recognized that the existence of a ground for termination of parental rights under N.C. Gen. Stat. § 7B-1111 (2009) is sufficient to demonstrate that a parent has "forfeited his or her constitutionally protected status." See Owenby v. Young, 357 N.C. 142, 145, 579 S.E.2d 264, 267 (2003) (describing termination of parental rights under N.C. Gen. Stat. § 7B-1111 as one of two methods a court may use to find that a natural parent has forfeited his or her constitutionally protected status). Here, the trial court found the existence of three grounds justifying termination of respondent-mother's parental rights, and respondent-mother has not challenged them. Therefore, the trial court's conclusions of law are sufficient to demonstrate that respondent-mother forfeited her constitutionally protected status as a parent, and the trial court properly moved to disposition, applying a best interests analysis. Accordingly, we reject respondent-mother's argument that she was entitled to a presumption protecting her constitutional right as a parent.
For the foregoing reasons, we are unable to say the trial court abused its discretion in terminating respondent-mother's parental rights to J.A.S. and affirm the trial court's order.
Affirmed.
Chief Judge MARTIN and Judge STEPHENS occur.
Report per Rule 30(e).