Opinion
NO. COA11-419 No. 05-J-80
08-16-2011
IN THE MATTER OF: P.C.H., A Minor Child
Goldsmith, Goldsmith & Dews, P.A., by James W. Goldsmith, for Rutherford County Department of Social Services, petitioner-appellee. Parker Poe Adams & Bernstein LLP, by Matthew C. Jordan, for guardian ad litem. Robert W. Ewing for respondent-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Rutherford County
Appeal by respondent father from judgment and order entered 18 January 2011 by Judge Laura A. Powell in Rutherford County District Court. Heard in the Court of Appeals 1 August 2011.
Goldsmith, Goldsmith & Dews, P.A., by James W. Goldsmith,
for Rutherford County Department of Social Services,
petitioner-appellee.
Parker Poe Adams & Bernstein LLP, by Matthew C. Jordan, for
guardian ad litem.
Robert W. Ewing for respondent-appellant.
THIGPEN, Judge.
Respondent-father appeals again from a judgment and order terminating his parental rights pursuant to N.C. Gen. Stat. § 7B-1111 (a)(6) (2009). During his first appeal, this Court remanded the matter to the trial court for further findings with respect to whether respondent-father has an appropriate child care arrangement. Although the trial court erred by adding and deleting findings of fact unrelated to the issue of appropriate child care arrangement, the error was not prejudicial. Because the trial court's findings of fact support its conclusion that respondent-father lacks an appropriate alternative child care arrangement, and because the court did not abuse its discretion by concluding that termination was in the best interest of the child, we affirm.
During his first appeal, this Court ruled that the trial court erred by failing to make sufficient findings of fact as to whether respondent-father lacked an appropriate alternative child care arrangement. This Court remanded the matter for "further findings with respect to whether respondent-father has an appropriate child care arrangement." In re P.C.H., No. COA10-89, slip op. at 7, 2010 N.C. App. LEXIS 905 at *8 (N.C. App. 1 June 2010). At a hearing on remand on 5 November 2010, the trial court heard the arguments of counsel, but did not receive any additional evidence. The court directed petitioner's counsel to prepare an order containing findings of fact "to satisfy the Court of Appeals." The court signed the Judgment and Order Terminating Parental Rights on 24 December 2010. Respondent-father appeals from this judgment and order.
On appeal, respondent-father argues (I) there was insufficient evidence to support finding of fact number 29; (II) the trial court failed to make sufficient findings of fact to support its conclusion that grounds existed to terminate his parental rights pursuant to N.C. Gen. Stat. § 7B-1111 (a)(6); (III) the trial court failed to follow the mandate of this Court by changing findings of fact not related to whether he has an appropriate child care arrangement; and (IV) the findings of fact did not support the conclusion that it was in the child's best interest to terminate his parental rights and it was an abuse of discretion to terminate his rights.
I. Grounds to Terminate Parental Rights
Respondent-father first contends the trial court failed to make sufficient findings of fact to support its conclusion of law that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(6) to terminate his parental rights. Specifically, respondent-father argues there are no findings of fact to support the conclusion that he lacks an appropriate alternative child care arrangement. Respondent-father also contends there was insufficient evidence to support finding of fact 29 that he "lacks an appropriate alternative child care arrangement[.]" We disagree.
"On appeal, our standard of review for the termination of parental rights is whether the trial court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law." In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006) (citation omitted). Pursuant to N.C. Gen. Stat. § 7B-1111(a)(6), the court may terminate one's parental rights upon a finding:
That the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.A " dependent juvenile" is defined as:
A juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.N.C. Gen. Stat. § 7B-101(9) (2009). In determining whether a juvenile is dependent, the court must consider both (1) the parent's ability to provide care or supervision and (2) the availability to the parent of an appropriate alternative child care arrangement. In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005). "Having an appropriate alternative childcare arrangement means that the parent himself must take some steps to suggest a childcare arrangement — it is not enough that the parent merely goes along with a plan created by DSS." In re L.H., _ N.C. App. _, _, 708 S.E.2d 191, 198 (2011) (citation omitted).
The pertinent findings in the court's order are as follows:
27. Based upon the nature of the conditions the respondent father suffers coupled with his past criminal convictions, he is not capable of providing for the proper care and supervision of the minor child and there exists a reasonable probability that the incapability will continue for the foreseeable future.
28. When the minor child was in the custody of the CCDSS, said agency made a relative placement of the child in the home of relatives of the respondent father, Mr. and Mrs. Evans. Upon termination of the CCDSS case, custody of the minor child was placed with the mother. Following the filing of the juvenile petition by DSS, the home of Mr. and Mrs. Evans was not approved by DSS as a placement for the minor child, and the child was placed in foster care. There is no evidence that thereafter any relative of the respondent father has sought to be considered as a placement for the minor child, and DSS and the Guardian Ad Litem did
not note any appropriate relatives for either the respondent mother or respondent father to be considered as placement possibilities for the minor child in court reports submitted up to the time of the termination hearing.
29. The respondent father lacks an appropriate alternative child care arrangement for the minor child other than the continued placement of the child in foster care.
30. After DSS assumed custody of the minor child, she was placed in a Level II therapeutic foster home.
31. The minor child is a special needs child who suffers from numerous development and psychological problems, including but not limited to the following:
1. Mild mental retardation;32. As a result of the above behaviors, the minor child was removed from the foster home in which she was initially placed and put into an alternative placement. The minor child's behavior initially improved, but subsequently deteriorated, requiring the minor child to again be removed.
2. Throwing tantrums;
3. Inappropriate sexual acting out, including masturbation;
4. Significantly diminished academic skills;
5. Engaging in self-injurious behavior;
6. Engaging in defiant behavior; and
7. Urinating on the floor and carpet of the foster parents.
33. The minor child could not be placed in a Level III home as none of the facilities could "handle her" due to her developmental,
psychological and behavioral problems.With the exception of finding of fact number 29, which he asserts is actually a conclusion of law, respondent-father does not challenge any of the findings of fact as being unsupported by evidence, and thus, they are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Respondent-father argues finding of fact number 28 does not support the conclusion of law that he "lacks an appropriate child care arrangement for the minor child" because N.C. Gen. Stat. § 7B-1111(a)(6) does not require a parent to find a placement, nor does it require that the child be placed with a parent's relative. He also argues the court failed to consider the availability of an alternative child care arrangement as of the time of the termination hearing.
" Our courts have, however, consistently held that in order for a parent to have an appropriate alternative child care arrangement, the parent must have taken some action to identify viable alternatives." In re L.H., _ N.C. App. at _, 708 S.E.2d at 197; see also In re J.D.L., 199 N.C. App. 182, 189, 681 S.E.2d 485, 490 (2009) ("A conclusion that a juvenile is dependent may be supported by evidence that the parent is unable to care for the child or to suggest an appropriate alternative placement for the child.") (citation omitted). Here, finding of fact number 28 reflects that respondent-father identified one relative placement which was determined not to be suitable, and respondent-father did not identify any other placements at any other time. The other findings of fact, specifically numbers 31 through 33, reflect that locating an appropriate placement has been difficult due to the child's special needs and emotional issues. We hold these findings are sufficient to support the conclusion of law that respondent-father lacked an appropriate child care arrangement for the child.
II. Appellate Court's Mandate
Respondent-father next contends the trial court failed to follow the mandate of this Court by adding, deleting or changing findings of fact which were unrelated to the issue of whether respondent-father has an appropriate child care arrangement. While we agree the trial court erred in not following our instructions, we hold the error was not prejudicial.
" The general rule is that an inferior court must follow the mandate of an appellate court in a case without variation or departure. However, the general rule only applies to issues actually decided by the appellate court." Condellone v. Condellone, 137 N.C. App. 547, 551, 528 S.E.2d 639, 642, disc. review denied, 352 N.C. 672, 545 S.E.2d 420 (2000) (citation and quotation marks omitted). On remand from an appellate court, the trial court "may in its sole discretion receive such further evidence and further argument from the parties as it deems necessary and appropriate to comply with the [appellate court's] opinion." Heath v. Heath, 132 N.C. App. 36, 38, 509 S.E.2d 804, 805 (1999) (citation omitted). Even if the trial court varies from the appellate court's mandate, such error is harmless if it is not prejudicial to the complaining party. In re R.A.H., 182 N.C. App. 52, 57, 641 S.E.2d 404, 407 (2007) (holding that the trial court's failure to hold a termination hearing as instructed by this Court was not prejudicial to respondent because the trial court's shift to a permanency planning hearing was a de facto dismissal of the termination proceeding).
In the instant case, this Court remanded respondent-father's initial appeal to the trial court for "further findings with respect to whether respondent-father has an appropriate child care arrangement." In re P.C.H., No. COA10-89, slip op. at 7, 2010 N.C. App. LEXIS 905 at *8. Respondent-father contends the trial court changed findings of fact which were unrelated to the issue of whether respondent-father has an appropriate child care arrangement. Specifically, respondent- father argues the trial court removed findings of fact from the initial order that were helpful to his best interest argument and added findings that were prejudicial to his best interest argument. Respondent-father also claims the new findings placed him in a more negative light by focusing upon his criminal history and his inability to be a positive influence in the child's life.
We agree the trial court erred by adding, deleting and changing findings of fact which were unrelated to the issue of whether respondent-father had an appropriate child care arrangement. However, the error was not prejudicial because, as discussed below, the trial court's findings of fact in its original order were sufficient to support the conclusion that termination of respondent-father's parental rights was in the best interest of the child.
III. Best Interest of the Juvenile
Respondent-father next argues the trial court's findings of fact in its original order did not support the conclusion that it was in the child's best interest to terminate his parental rights. Respondent-father also contends the trial court abused its discretion by determining it was in the child's best interest to terminate his rights when the mother, who was "similarly situated," retained her parental rights. We disagree.
After the trial court finds the existence of a ground for termination of parental rights, it must then decide whether termination of parental rights is in the juvenile's best interest. N.C. Gen. Stat. § 7B-1110(a) (2009). In making this determination the court is to consider the following:
(1) The age of the juvenile.Id. "We review the trial court's decision to terminate parental rights for abuse of discretion." In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002) (citation omitted). "A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
(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.
Respondent-father first contends the trial court's findings of fact do not support its conclusion of law that termination of his parental rights was in the child's best interest because the court made similar findings with regard to the mother, but concluded it was not in the child's best interest to terminate her rights. Although respondent-father recognizes that unlike the mother, he did not comply with the Cleveland County case plan, he argues the two are "similarly situated" in terms of incapability due to mental limitations. This argument, however, ignores the court's findings of fact in the original order which show (1) respondent-father has been convicted of criminal offenses, including domestic violence, and (2) respondent-father does not have the same bond with the child as the mother. Specifically, the court made findings that the child wrote letters to and made Valentine's Day cards and Christmas lists for the mother, that the child has expressed a desire to visit with the mother and struggles with not knowing when she will see her, that the mother has made significant progress in overcoming her limitations, and that the mother loves the child. The court did not make any findings to show that respondent-father had made similar progress or had a similar bond with the child.
Respondent-father acknowledges that the court addressed the factors set forth in N.C. Gen. Stat. § 7B-1110(a), but he contends that "[w] ithout making in its findings any real differentiation between the respondent mother's and respondent father's situation, it was an abuse of discretion to only terminate" respondent-father's rights. He also notes that the court's failure to terminate the mother's parental rights does not further the permanent plan of adoption.
As discussed above, the trial court made findings in its original order that showed a bond between the mother and child, but did not make similar findings with regard to the relationship between respondent-father and the child. Moreover, the trial court made the following unchallenged findings of fact regarding the best interest determination:
51. Given the fact the child is a special needs child who suffers from the conditions set forth above, the court believes the likelihood of adoption at this time is remote, and will remain so for the foreseeable future.
52. Due to the remoteness of adoption for the minor child, the court believes that termination of the Respondent Mother's parental rights will give the minor child no greater level of permanence than not
terminating the Respondent Mother's parental rights.
53. It is apparent to this court the Respondent Mother loves and cares for this child and the court recognizes that to terminate the Respondent Mother's Parental Rights with the remote hope that an adoptive family will arise effectively turns this child into an orphan.
54. As a result of the above observations coupled with the fact that the minor child is currently placed with a family who possesses the training and skills to "handle" the minor child, the court finds it is not in the minor child's best interests for the parental rights of the Respondent Mother [to] be terminated.
55. However, given the lack of the Respondent Father's participation in the CCDSS case coupled with the conditions from which he suffers as set forth above, it is in the minor child's best interests for his parental rights to be terminated.
The findings of fact in the trial court's original order differentiate respondent-father's situation and relationship with the child from that of the mother. Furthermore, the unchallenged findings of fact demonstrate that the trial court properly considered the factors listed in N.C. Gen. Stat. § 7B-1110(a) and reached a reasoned decision based upon these factors. Thus, the trial court did not abuse its discretion in determining that termination of respondent-father's parental rights was in the child's best interest.
AFFIRMED.
Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).