Opinion
No. COA10-682
Filed 16 November 2010 This case not for publication
Appeal by respondent-mother from orders entered 3 March 2010 by Judge Robert Wilkins in Randolph County District Court. Heard in the Court of Appeals 28 October 2010.
Robin K. Martinek, Staff Attorney, for petitioner-appellee Randolph County Department of Social Services. Lucas Ellis, PLLC, by Anna S. Lucas, for respondent-appellant mother. Smith, Anderson, Blount, Dorsett, Mitchell Jernigan, L.L.P., by Francisco J. Benzoni and J. Mitchell Armbruster, for guardian ad litem.
Randolph County Nos. 07 J 117, 118.
Respondent-mother appeals from the district court's orders terminating her parental rights to two of her sons, J.G.L. and S.C.L. After careful review, we affirm.
The trial court also terminated the father's parental rights to J.G.L. and S.C.L. He does not appeal.
On 20 July 2007, the Randolph County Department of Social Services ("DSS") filed juvenile petitions alleging that S.C.L. was a neglected juvenile and that J.G.L. was a neglected and dependent juvenile. The petitions alleged that the juveniles' parents lacked stable housing, were unemployed, had ongoing, untreated substance abuse issues, and failed to provide proper supervision for the juveniles. In the petition regarding J.G.L., DSS further alleged that J.G.L. did not take his prescribed psychotropic medications, that he appeared to be obese, and that he did not attend school consistently.
On the same day the petitions were filed, the trial court entered nonsecure custody orders giving custody of J.G.L. and S.C.L. to DSS, and DSS placed the boys together in a licensed foster home. J.G.L. and S.C.L. have a half-brother, D.W.A., who was fifteen years old at the time and also was taken into nonsecure custody. D.W.A. originally was placed in a licensed foster home with his brothers, but he was moved to a placement with his maternal grandmother on 3 October 2007 after he had run away from his foster placement. On 23 August 2007, J.G.L. and S.C.L. were moved to a therapeutic foster home, and on 27 August 2007, J.G.L. was moved to a different licensed foster home.
D.W.A. has since reached the age of majority. However, his background is relevant to the instant case.
The trial court conducted an adjudication and disposition hearing on 9 April 2008 and entered a corresponding order on 23 April 2008. Respondent-mother and the father of J.G.L. and S.C.L. consented to an adjudication of dependency. The putative father of D.W.A. was not present at the time of the hearing. The trial court found that all three children were adjusting well to their placements and made findings regarding each of the children. J.G.L. was doing well in school and had lost weight. However, he exhibited some behavioral problems, such as cursing, lying, and hitting. His behavior had improved somewhat after his physician switched his medication for Attention Deficit Hyperactivity Disorder ("ADHD"). Additionally, J.G.L. was receiving therapy for his impulsive behavior. S.C.L. also had behavioral problems, such as biting, hitting, cursing, and having trouble staying on task. S.C.L. was attending preschool to improve his academics and his behavioral problems. S.C.L. also received therapy and was prescribed medication for his behavioral problems. His behavior had improved since he began taking the medication.
We refer to the father by the pseudonym "Ken L."
The trial court also made findings related to the parents. Respondent-mother had been incarcerated on 22 August 2007 and was released on 26 March 2008. Prior to her incarceration, she submitted to a drug screen, which was positive for several controlled substances. While in prison, respondent-mother completed a drug treatment program and attended weekly Alcoholics Anonymous/Narcotic Anonymous ("AA/NA") meetings. After her release, she moved to a halfway house in Asheboro for continued drug treatment, had a negative drug test, and began vocational rehabilitation. By the time of the hearing, Ken L. had been incarcerated several times and had several positive drug screens. At the time of the hearing, he was serving a ninety-day sentence at the Forsyth County Jail.
The court granted respondent-mother weekly supervised visitation, along with an additional monthly community-based visit. The trial court ordered respondent-mother to obtain stable housing and employment, to continue substance abuse treatment, and to submit to random drug and alcohol testing.
At the time of the 28 September 2008 review hearing, the children remained in the same placements. J.G.L. and S.C.L. continued to have behavioral problems and continued therapy. Respondent-mother was complying with DSS's recommendations: she had obtained a job, had completed an intensive outpatient treatment program, had produced negative drug screens, had completed parenting classes, and had begun to transition into independent housing. Ken L., however, was not complying with DSS's recommendations, and the trial court ceased reunification efforts with him.
By the time of the permanency planning hearing on 14 January 2009, however, respondent-mother's progress had slowed. She had been laid off from her job temporarily, had been unable to find a new job in the interim, had a positive drug test, and had several new misdemeanor charges pending against her. Respondent-mother stated that the charges stemmed from her involvement with Ken L., and she admitted that she did not do well around him. She further admitted that staying away from him would be in her children's best interests. Notwithstanding respondent-mother's setbacks, the trial court maintained a permanent plan of reunification with respondent-mother.
By the next permanency planning hearing on 8 April 2009, circumstances surrounding the case had changed, and in an order entered 29 May 2009, the trial court ceased reunification efforts with respondent-mother and changed the permanent plan for S.C.L. and J.G.L. to adoption. On 24 March 2009, DSS learned that D.W.A. had run away from his grandmother's home and had been gone for approximately one month. Although his whereabouts were unknown, DSS also learned that D.W.A. was likely residing with his mother. The grandmother admitted that she let D.W.A. spend a weekend with his mother. She also indicated that respondent-mother had visited her residence and that D.W.A. left with respondent-mother. DSS unsuccessfully attempted to locate D.W.A. and filed a runaway petition on 2 April 2009. DSS attempted to contact respondent-mother after D.W.A. ran away, but her whereabouts also were unknown. At the time of the hearing, DSS had recently learned that respondent-mother and Ken L. both were incarcerated in the Forsyth County Jail. Respondent-mother subsequently was released on 24 April 2009.
The trial court made several findings related to the juveniles' mental health issues. J.G.L. continued to have behavioral problems. After a troubling incident, J.G.L. was hospitalized for a week. His psychiatrist prescribed a new medication and he was diagnosed with ADHD, Oppositional Defiant Disorder, and Adjustment Disorder. Based on his behavioral problems, DSS determined that J.G.L. needed a therapeutic placement, and he subsequently was moved to a therapeutic foster home on 27 April 2009. S.C.L. continued to reside in the same therapeutic foster home. He continued weekly therapy, but his therapist recommended that he be further evaluated by a psychologist.
On 17 June 2009, DSS filed motions to terminate respondent-mother's parental rights to S.C.L. and J.G.L. based on the following grounds: (1) neglect pursuant to North Carolina General Statutes, section 7B-1111(a)(1); (2) willfully leaving the juveniles in foster care for over twelve months without showing reasonable progress in correcting the conditions which led to removal pursuant to North Carolina General Statutes, section 7B-1111(a)(2); (3) dependency pursuant to North Carolina General Statutes, section 7B-1111(a)(6); and (4) willfully failing to pay a reasonable portion of the cost of care for the juveniles pursuant to North Carolina General Statutes, section 7B-1111(a)(3). DSS also sought to terminate Ken L.'s parental rights. D.W.A. turned eighteen years old in September 2009 and is, therefore, no longer subject to the trial court's jurisdiction pursuant to the Juvenile Code.
On 4 and 18 November 2009 and 22 January 2010, the trial court conducted a termination of parental rights hearing as to S.C.L. and J.G.L. In orders entered 3 March 2010, the trial court found the existence of all four grounds for termination alleged by DSS against respondent-mother. At disposition, the trial court concluded that it was in the children's best interests to terminate the parental rights of respondent-mother. The trial court also terminated Ken L.'s parental rights to S.C.L. and J.G.L. From this order, respondent-mother appeals.
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 court's decision whether to terminate parental rights is discretionary. N.C. Gen. Stat. §§ 7B-1110-1111 (2009); In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38, disc. rev. denied, 318 N.C. 283, 347 S.E.2d 470 (1986). On appeal, respondent-mother does not challenge the trial court's conclusions that grounds existed to terminate her parental rights to S.C.L. and J.G.L. Nor does she make any other challenges to the adjudicatory stage of proceedings. Although respondent-mother raised challenges to the grounds for termination in her statement of proposed issues on appeal, she has not argued any of them in her brief. Accordingly, the trial court's adjudication of grounds for termination is binding on appeal. See N.C. R. App. P. 28(b)(6) (2009).
Instead, respondent-mother only presents challenges to the dispositional stage of the proceedings. 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) (2009); see, e.g., In re S.C.H., ___ N.C. App. ___, ___, 682 S.E.2d 469, 474 (2009), aff'd, 363 N.C. 828, 689 S.E.2d 858 (2010) (per curiam). We review the trial court's determination that a termination of parental rights is in the best interest 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 as to S.C.L., the trial court made the following relevant findings of fact:
12. That an entry of an order terminating parental rights of the Father and the Mother would not result in an unnecessary severance of the relationship between the biological parents to the minor child.
. . . .
23. The permanent plan for the minor child is adoption. [DSS] believes that the minor child will thrive in a structured and stable home environment as he has thrived in his current foster home and that the minor child is an adoptable child. A child profile regarding the minor child was completed to send out to various adoption agencies. [DSS] has already recently received responses from five different families interested in adoption of the minor child and the minor child's sibling. [DSS] is in the process [of] reviewing the profiles of the five families to determine which family will be the best match for the minor child. Once a family is matched with the minor child [DSS] will move forward with the process of introducing the minor child to the matched family to include meeting with the family, arranging visits with the minor child, and placement of the minor child in the identified home.
24. The minor child has been visiting with a family who has expressed an interest in adopting him. The minor child has had overnight visits with this family on several occasions as recent as the weekend of January 8, 2010.
In its order as to J.G.L., the trial court made the following findings:
12. That an entry of an order terminating parental rights of the Father and the Mother would not result in an unnecessary severance of the relationship between the biological parents to the minor child.
. . . .
25. The permanent plan for the minor child is adoption. [DSS] believes that the minor child will thrive in a structured and stable home environment as he has thrived in his current foster home and that the minor child is an adoptable child. A child profile regarding the minor child was completed to send out to various adoption agencies. [DSS] has already recently received responses from five different families interested in adoption of the minor child and the minor child's sibling. [DSS] is in the process [of] reviewing the profiles of the five families to determine which family will be the best match for the minor child. Once a family is matched with the minor child [DSS] will move forward with the process of introducing the minor child to the matched family to include meeting with the family, arranging visits with the minor child, and placement of the minor child in the identified home.
In each of the orders, the trial court made findings regarding the birth dates of S.C.L. and J.G.L., from which one can infer that S.C.L. was six years old and J.G.L. was nine years old at the time of termination. Thus, the trial court made findings which demonstrate that it considered the age of the juveniles, the likelihood of adoption, the bond between parent and child, and whether termination would aid in the accomplishment of a permanent plan for the juveniles. The trial court did not make any findings regarding the relationship between the children and the current foster parents, but such a finding was not necessary because the children's foster home was not a pre-adoptive placement. Additionally, in each order, the trial court made several findings regarding each child's educational progress, mental and physical health, behavioral issues and any related progress, and ongoing mental health treatment. Although not mandated by North Carolina General Statutes, section 7B-1110(a), these findings are relevant to the children's best interest determination because the children's mental health and behavioral issues have a bearing on any permanent plan for the children.
However, respondent-mother does not argue that the trial court neglected to consider the factors listed in North Carolina General Statutes, section 7B-1110. Instead, respondent-mother argues that the trial court abused its discretion by terminating her parental rights, notwithstanding the existence of a bond between respondent-mother and the children. We disagree. Although we acknowledge that there may have been a bond between respondent-mother and her children, the existence of a bond does not necessarily preclude the termination of parental rights.
Respondent-mother also argues that the children were bonded to each other and their older brother, and therefore, it would not be in their best interests to allow for separate placements for the children. Again, although this evidence may be relevant to the trial court's determination, it does not necessarily preclude the termination of parental rights.
Here, the trial court determined that, notwithstanding any bond, it was in the children's best interests to terminate respondent-mother's parental rights in light of their significant mental and emotional problems and their need for a structured and stable home. See In re C.L.C., 171 N.C. App. 438, 448, 615 S.E.2d 704, 709 (2005) (holding that the trial court was entitled to determine whether "other facts" outweighed the presence of a bond between mother and child), aff'd and disc. review improvidently allowed, 360 N.C. 475, 628 S.E.2d 760 (2006) (per curiam). Therefore, the trial court's determination in this regard was not an abuse of discretion.
Next, respondent-mother contends that the trial court incorrectly determined that termination was in the children's best interests based upon the lack of prospective adoptive parents at the time of the termination. Respondent-mother suggests that the trial court should have given more weight to the children's likelihood of adoption in determining whether termination was in their best interests. We disagree.
Contrary to respondent-mother's suggestion, the trial court is not required to find that a child is adoptable before terminating a parent's parental rights. See In re Norris, 65 N.C. App. 269, 275, 310 S.E.2d 25, 29 (1983) ("It suffices to say that such a finding [of adoptability] is not required in order to terminate parental rights."), cert. denied, 310 N.C. 744, 315 S.E.2d 703 (1984). Here, the trial court found that DSS was in the process of finding adoptive placements and was even reviewing family profiles at the time of the hearing, and the trial court's findings regarding the children's likelihood of adoption were supported by the testimony of the social worker assigned to their case. Accordingly, we hold that the trial court did not abuse its discretion in this regard.
Finally, respondent-mother contends that the trial court did not adequately consider her mother as a placement for S.C.L. and J.G.L. As an initial matter, we note the following regarding potential kinship placements raised at a termination proceeding:
During the adjudicatory phase, the trial court does not consider whether there is a relative who can take custody of the minor child, but focuses on whether there is evidence to support termination on the grounds alleged in the petition. If a fit relative were to come forward and declare their desire to have custody of the child, the court could consider this during the dispositional phase as grounds for why it would not be in the child's best interests to terminate the respondent's parental rights.
In re J.A.A., 175 N.C. App. 66, 75, 623 S.E.2d 45, 51 (2005). Furthermore, even if the trial court considers a potential relative placement, "the trial court is not required to make findings of fact on all the evidence presented, nor state every option it considered." Id.
After reviewing the record, we disagree with respondent-mother's contention and hold no abuse of discretion in the trial court's decision not to place the children with the grandmother. First, it is evident that the trial court considered the grandmother as a placement because she testified during the dispositional portion of the hearing regarding her willingness and ability to take respondent-mother and the children into her home. Next, we note that the evidence indicates that the grandmother would not have been an appropriate placement for J.G.L. and S.C.L. in light of the failed placement with D.W.A. Although D.W.A.'s placement started out satisfactorily, D.W.A. ultimately ran away from the grandmother's home. DSS did not find out that D.W.A. had run away until a month after he left home, and the grandmother refused to inform DSS of her knowledge regarding his whereabouts. At the hearing, the grandmother admitted that D.W.A. continued to visit her after he ran away, but she did not share this information with DSS. Additionally, prior to his leaving home, the grandmother allowed D.W.A. to spend a weekend with his mother in violation of the trial court's orders. Given the events that occurred during D.W.A.'s placement with the grandmother, the trial court was within its discretion to rule her out as a placement for J.G.L. and S.C.L. Although the trial court did not make specific findings of fact regarding the grandmother as a placement, it is apparent that the court considered her as an option. See id. (holding that the trial court did not abuse its discretion by failing to make findings rejecting a relative placement). Therefore, we cannot say that the trial court abused its discretion by terminating respondent-mother's parental rights to J.G.L. and S.C.L. instead of placing them with the grandmother.
For the foregoing reasons, the trial court's order terminating respondent-mother's parental rights is affirmed.
Affirmed.
Judges ELMORE and THIGPEN concur.
Report per Rule 30(e).