Opinion
No. COA14–1233.
05-05-2015
In the Matter of I.L.-M.
Christopher L. Carr for petitioner-appellee Cumberland County Department of Social Services. J. Thomas Diepenbrock for respondent-appellant father. Beth A. Hall for guardian ad litem.
Christopher L. Carr for petitioner-appellee Cumberland County Department of Social Services.
J. Thomas Diepenbrock for respondent-appellant father.
Beth A. Hall for guardian ad litem.
TYSON, Judge.
Sherard McLaurin (“respondent-father”) appeals from the district court's order terminating his parental rights to I.L.-M. We affirm.
I. Background
On 20 July 2006, the Cumberland County Department of Social Services (“DSS”) obtained nonsecure custody of seven-month-old I.L .-M. and his half-siblings. At the same time, DSS filed a petition alleging the juveniles were neglected and dependent. The petition alleged, inter alia,that both respondent-father and the children's mother suffered substance abuse addictions, respondent-father was abusive, and the family was homeless.
The parents stipulated and the trial court concluded the juveniles were dependent on 11 January 2007. In the dispositional portion of the order, the court concluded it was in the juveniles' best interest to remain within DSS custody.
On 29 May 2008, legal custody was returned to the children's mother and the case was closed. Respondent-father moved to review on 26 February 2009 and claimed the children's mother was denying him visitation with I.L.-M. The case was reopened on 20 April 2009.
On 19 May 2009, DSS obtained nonsecure custody of the children and filed a second petition alleging neglect and dependency. Many of the circumstances surrounding the first petition were re-alleged in the second petition. The trial court entered an order adjudicating the juveniles dependent, based on the stipulation of the parents on 25 September 2009. The court concluded the children's best interests were served by their remaining within DSS custody.
On 4 April 2012, DSS moved to terminate respondent-father's rights to I.L.-M. based on the following grounds: neglect; failure to make reasonable progress; failure to support; failure to legitimate; dependency; and, willful abandonment. SeeN.C. Gen.Stat. § 7B–1111(a)(1)–(3), (5)-(7) (2013). Following a hearing, the trial court found all grounds existed as alleged by DSS, except willful abandonment. The trial court concluded that termination of respondent-father's parental rights was in I.L.-M.'s best interest. The trial court also terminated the parental rights of the mother and the father of I.L.-M.'s half-brother. Neither of them appealed. On 2 September 2014, this Court issued the writ of certiorari to review the trial court's order.
II. Standard of Review
“On appeal, our standard of review for the termination of parental rights is whether the trial court's findings of fact are based on clear, cogent and convincing evidence and whether the findings support the conclusions of law.” In re Baker, 158 N.C.App. 491, 493, 581 S.E.2d 144, 146 (2003) (citations and internal quotation marks omitted).
“The trial court's conclusions of law are reviewable de novoon appeal.” In re D.M.M. & K.G.M., 179 N.C.App. 383, 385, 633 S.E.2d 715, 715 (2006) (citation and internal quotation marks omitted).
III. Issue
Respondent-father does not challenge the adjudicatory stage of the proceedings. Respondent-father challenges the trial court's findings of fact and dispositional determinations.
IV. Analysis
Proceedings to terminate parental rights involve a two-stage process: (1) the adjudication, where petitioner is required to prove the existence of grounds for termination by clear, cogent, and convincing evidence; and (2) the disposition, where the court considers the parental rights of the parents and the best interest of the juvenile. N.C. Gen.Stat. §§ 7B–1110, 7B–1111 (2013) ; 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).
Our juvenile code provides that “[a]fter 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 juvenile's best interest.” N.C. Gen.Stat. § 7B–1110(a) (2013). In so doing, the trial court is required to
consider the following criteria and make written findings on those 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.
Id.; see also, e.g., In re D.H.,––– N.C.App. ––––, ––––, 753 S.E.2d 732, 734–35 (2014).
A. Lack of Findings of Fact
Respondent-father argues that the trial court erred by failing to make findings of fact on all relevant criteria, and specifically the quality of the relationship between the juvenile and the prospective adoptive parent. SeeN.C. Gen.Stat. § 7B–1110(a)(5). We disagree.
This Court held the trial court must consider all six factors, but is only required to make findings on those that are relevant. D.H.,––– N.C.App. at ––––, 753 S.E.2d at 735 (“We do not believe, however, that N.C. Gen.Stat. § 7B–1110(a) requires the trial court to make written findings with respect to all six factors; rather, as the plain language of the statute indicates, the court must enter written findings in its order concerning only those factors ‘that are relevant.’ ”).
Here, the evidence shows that I.L.-M. was not in an adoptive placement at the time of the termination hearing. The juveniles' social worker testified that I.L.-M.'s previous placement was originally adoptive, but the foster parents ultimately had changed their minds. She also testified that I.L.-M.'s current foster parent had no interest in adopting I.L.-M., but was willing to serve as his caretaker in the interim. It appears that the trial court ultimately determined that a finding regarding the quality of the relationship between the juvenile and the prospective adoptive parent was not relevant, as I.L.-M. was not in an adoptive placement. The trial court did not err by failing to make this finding under these circumstances.
B. Support in the Evidence
Respondent-father argues the trial court's finding regarding I.L.-M.'s likelihood of adoption was not supported by the evidence. In dispositional finding of fact number 4, the trial court found “[t]hat the likelihood of adoption for each of these juveniles is great.” Respondent-father argues this finding is not supported by the evidence, because I.L.-M. was not in an adoptive placement, and his behavior made his prospects for adoption “bleak.” We disagree.
The social worker testified that two weeks before the hearing, I.L.-M.'s previous foster parent called her to inquire into I.L.-M.'s status. She stated that she missed I.L.-M. and his half-brother and asked about adoption. The previous foster parent expressed a desire to adopt I.L.-M., but not his half-brother. The social worker also testified that I.L.-M.'s age made him adoptable, and that his behavior had improved.
The foregoing testimony by the social worker supports the trial court's finding. The trial court has discretion to weigh the evidence and make the finding. See In re Hughes, 74 N.C.App. 751, 759, 330 S.E.2d 213, 218 (1985) (“The trial judge determines the weight to be given the testimony and the reasonable inferences to be drawn therefrom.”). The finding by the trial court is supported by clear, cogent, and convincing evidence.
C. Parental Bond
Next, respondent-father challenges the trial court's dispositional finding that “[t]he bond between the juvenile [I.L.-M .] and the Respondent Father [ ] does exist, albeit weakly, from contact in the therapeutic setting.” Respondent-father argues that this finding is not supported by the evidence. I.L.-M.'s therapists noted: (1) I.L.-M. was attached to his father and benefited from visits; and (2) respondent-father loved I.L.-M. and was nurturing. We conclude that notwithstanding this evidence cited by respondent-father, the trial court's finding is supported by the evidence of record.
The evidence shows that with the exception of a failed trial placement with the mother, eight-year-old I.L.-M. had been in DSS custody since July 2006, when he was seven months old. Respondent-father had visitation with I.L.-M. until January 2010, when it was suspended. Visitation did not resume until September 2012, and the visits have been conducted in a therapeutic setting. The trial court's order also acknowledged the bond existed between the parent and child. It appears that the trial court was simply inferring that the bond between parent and child was weakened, possibly due to the less-than-ideal nature of respondent-father's visitation within a therapeutic setting. It was within the trial court's province to make such inferences. We find no abuse of discretion in this finding.
D. Legal Orphan
Next, respondent-father argues that the trial court erred in terminating his parental rights. He asserts I.L.-M. did not have an adoptive placement and would be made a “legal orphan.” Long ago, this Court held that the lack of an adoptive placement at the time of the termination hearing is not a bar to terminating parental rights. See In re Norris, 65 N.C.App. 269, 275, 310 S.E.2d 25, 29 (1983) (stating that “[i]t suffices to say that such a finding [of adoptability] is not required in order to terminate parental rights”), disc. review denied, 310 N.C. 744, 315 S.E.2d 703 (1984).
Respondent-father cites to In re J.A.O.in support of his argument. 166 N.C.App. 222, 601 S.E.2d 226 (2004). In J.A.O.,we held that the trial court abused its discretion in terminating the mother's parental rights to the juvenile. At the time of the termination proceeding in J.A.O.,the juvenile was fourteen years old, had severe medical and behavior disorders, had been in foster care since he was eighteen months, and had been in nineteen different treatment centers. Id.at 227–28, 601 S.E.2d at 230.
The guardian ad litem (“GAL”) in J.A.O.recommended that the mother's parental rights to the juvenile not be terminated, because adoption was unlikely and termination would thus cut off the juvenile from his only family connection. Id.at 225, 601 S.E.2d at 228. This Court reasoned that “after balancing the minimal possibilities of adoptive placement against the stabilizing influence, and the sense of identity, that some continuing legal relationship with natural relatives may ultimately bring, we must conclude that termination would only cast [Jeff] further adrift.” Id.at 228, 601 S.E.2d at 230 (alteration in original) (citation and internal quotation marks omitted). This Court concluded that it was not in the juvenile's best interest to become a “legal orphan” and held that the trial court abused its discretion in terminating the mother's parental rights. Id.
We find the instant case distinguishable from J.A.O.While I.L.-M. has some behavioral issues, testimony showed his condition was improving at the time of the termination hearing and was not nearly as severe as the condition of the juvenile in J.A.O.The trial court also found that I.L.-M. was adoptable. The GAL in this case also recommended that respondent-father's rights be terminated. The trial court did not make I.L.-M. a “legal orphan.”
Respondent-father argues the trial court failed to sufficiently consider the criteria in N.C. Gen.Stat. § 7B–1110(a). We disagree. After review of the record, we conclude that the trial court heard and weighed the clear, cogent, and convincing evidence, made a reasoned decision, and held termination of respondent-father's parental rights was in I.L.-M.'s best interest. In doing so, the trial court fully considered the criteria required by N.C. Gen.Stat. § 7B–1110(a) and made findings on all factors that were relevant. We find no error in this determination.
V. Conclusion
The order of the trial court terminating respondent-father's parental rights is affirmed.
AFFIRMED.
Judges ELMORE and INMAN concur.
Report per Rule 30(e).
Opinion
On writ of certiorari to review order entered 17 April 2014 by Judge Edward A. Pone in Cumberland County District Court. Heard in the Court of Appeals 20 April 2015.