Opinion
No. COA12–978.
2013-02-5
In the Matter of J.E.
David S. Tedder, for petitioner-appellee Columbus County Department of Social Services. Parker Poe Adams & Bernstein LLP, by Christopher M. Thomas and Jennifer L. Ma, for Guardian ad Litem.
Appeal by respondent-mother from orders entered 25 April 2012, nunc pro tunc 27 March 2012, by Judge William Fairley in Columbus County District Court. Heard in the Court of Appeals 28 January 2013. David S. Tedder, for petitioner-appellee Columbus County Department of Social Services. Parker Poe Adams & Bernstein LLP, by Christopher M. Thomas and Jennifer L. Ma, for Guardian ad Litem.
Ryan McKaig, for respondent-appellant mother.
CALABRIA, Judge.
Respondent-mother (“respondent”) appeals from the trial court's orders terminating her parental rights to the minor child, J.E. (“Josh”) . Josh's father is not a party to the appeal. We affirm.
We use a pseudonym to protect the identity of the child and for ease of reading.
On 2 February 2001, the Columbus County Department of Social Services (“DSS”) filed a petition alleging that Josh was a neglected juvenile in that he did not receive proper care, supervision or discipline from his parents and he lived in an environment injurious to his welfare. DSS asserted that it had substantiated allegations of neglect based upon a history of domestic violence between respondent and Josh's father. DSS further alleged that Josh's father had returned home after his release from incarceration for assaulting respondent. DSS learned that “[n]eighbors, family, and collaterals verify continued domestic violence and substance/alcohol abuse.” DSS further claimed that Josh's parents were uncooperative with DSS and their home lacked food, and was cluttered and unkempt. On 13 June 2001, Josh was adjudicated a neglected juvenile. Josh was subsequently placed in the legal and physical custody of DSS. Since 21 April 2009, Josh lived with his foster mother.
On 1 December 2009, after Josh had been in the continuous custody of DSS for over eight years, the trial court changed the permanent plan for Josh from reunification to adoption with a concurrent plan of guardianship with a court-appointed caretaker. On 7 May 2010, DSS filed a petition to terminate respondent's parental rights. On 25 April 2012, the trial court entered an adjudication order concluding that grounds existed, pursuant to N.C. Gen.Stat. § 7B–1111, to terminate respondent's parental rights. On the same date, the trial court entered a separate dispositional order concluding it was in Josh's best interests to terminate respondent's parental rights. Respondent appeals.
Respondent's sole argument on appeal is that the trial court erred by concluding that it was in Josh's best interests to terminate respondent's parental rights where: (1) Josh expressed a desire to maintain a relationship with respondent; and (2) the maternal grandmother expressed a willingness to care for Josh. We disagree.
Once statutory grounds for termination have been established, the trial court is required to “determine whether terminating the parent's rights is in the juvenile's best interest.” N.C. Gen.Stat. § 7B–1110(a) (2011). When determining whether it is in the juvenile's best interests to terminate the parent's rights, the trial court is required to make written findings regarding the relevant factors enunciated in N.C. Gen.Stat. § 7B–1110(a). Id. The factors are:
(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. “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).
In the instant case, the trial court found in its dispositional order:
3. That the minor child is 13 years of age; that the likelihood of adoption is extremely high; that termination of parental rights will aid in the accomplishment of the permanent plan of the juvenile; ... that the bond between the juvenile and respondent mother is one liken[ed] to that of an acquaintance; that the quality of the relationship between the juvenile and the proposed adoptive parent is extremely high.
Initially, we note that respondent does not challenge the court's findings and therefore, they are binding on appeal. See Koufman v.. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (unchallenged findings are deemed supported by competent evidence and are binding on appeal).
While Josh may have expressed an interest in maintaining a relationship with respondent, he also testified, and the court found as fact, that he loved his foster mother and wanted to be adopted by her. The court further found as fact that the foster mother desired to adopt Josh as soon as he was available for adoption. Conversely, Josh does not have a strong bond with respondent. Respondent had not seen Josh in five years, saw him only sporadically before that and was unaware of his grade level in school. Despite Josh's interest in maintaining a relationship with respondent, the record demonstrates that Josh has established a strong bond with his foster mother, that they have a loving, mother-son relationship, and that it was in Josh's best interests to terminate respondent's parental rights to facilitate his adoption.
Respondent argues that “it does not appear that the trial court ever considered [the maternal grandmother] as a possible placement for the child,” and that “[t]he trial court made no finding that [the maternal grandmother] is an unfit guardian and failed to consider a familial placement for the child.”
“[T]he trial court is not required to make findings of fact on all the evidence presented, nor state every option it considered.” In re J.A.A. & S.A.A., 175 N.C.App. 66, 75, 623 S.E.2d 45, 51 (2005). In addition, the trial court is not required to make a finding rejecting a relative as a placement option. See In re M.M., 200 N.C.App. 248, 258, 684 S.E.2d 463, 469 (2009) ( “A trial court may, but is not required to, consider the availability of a relative placement during the dispositional phase of a hearing to terminate parental rights.”). In J.A.A., this Court held it was not an abuse of discretion for the trial court to terminate the respondent's parental rights over respondent's objection that her sister was able to take care of the minor child, even though the trial court did not make an explicit finding of fact rejecting the placement of the child with the respondent's sister. 175 N.C.App. at 75–76, 623 S.E.2d at 51.
In the instant case, the fact that the trial court did not make a written finding regarding the maternal grandmother's suitability as a placement for Josh does not mean that she was not considered when the court made its determination. Moreover, the trial court was not required to make a finding rejecting the maternal grandmother as a placement option. See In re M.M., 200 N.C.App. at 258, 684 S.E .2d at 469.
When the maternal grandmother testified at the hearing, she was unsure whether it would be best for Josh to be placed with her:
Q. Have you offered, today, your home as a possible placement for [Josh]?
A. Yes, sir.
Q. Is that what you want to see happen?
A. Yes, sir, anything—I want anything that's for my grandchildren.
Q. Let me ask you just—the placement with your cousin, is he doing well there?
A. Yes, sir, as I see.
Q. Okay. Well, do you think it's in his best interest to stay where he is, or would it be in his best interest to come live with you or other family members?
A. No, sir. I can't tell you that answer now because, when he see me, he want to come with me. I don't go where he at. He comes to me first.
Q. Okay.
A. I can't answer that.
When Josh testified about seeing his maternal grandmother, his only audible statement was that he saw her at church. Josh's foster mother encouraged him to maintain a relationship with the maternal grandmother by urging him to initiate contact with her at church.
Respondent argues that our statutes mandate priority of relative placements:
In placing a juvenile in out-of-home care under this section, the court shall first consider whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home. If the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order placement of the juvenile with the relative unless the court finds that the placement is contrary to the best interests of the juvenile.
N.C. Gen.Stat. § 7B–903(a)(2)(c) (2011). While there was some evidence presented at the hearing that the maternal grandmother was “willing and able to provide proper care and supervision in a safe home,” the court does not have to order placement with the relative if “the court finds that the placement is contrary to the best interests of the juvenile.” Id.
The evidence from the termination hearing supported the trial court's conclusion that it was in Josh's best interests to terminate respondent's parental rights. Respondent never suggested the maternal grandmother as a potential placement for Josh during the eleven years he was in the custody of DSS. The maternal grandmother testified that her efforts to take care of Josh were denied, yet this testimony was unverified. Respondent never requested that DSS perform a study of the maternal grandmother's home to determine if she could be considered as a potential placement. In multiple orders throughout the instant case, the court found “[t]hat no relative of the juvenile(s) is willing and able to provide proper care and supervision in a safe home.” Until the termination of parental rights hearing, respondent's attorney never even met the maternal grandmother, nor did he know Josh whether or not had a relationship with her. Likewise, Josh's guardian ad litem, who had handled his case for almost six years, had never spoken to the maternal grandmother at any time before the termination hearing.
According to the evidence, Josh's only contact with the maternal grandmother was prior to his placement in the custody of DSS when he was two years old. Josh never lived with the maternal grandmother. In addition, the maternal grandmother's only contact with Josh since his placement was when she saw him at church.
Respondent focuses heavily on the primacy in our society and law of maintaining family relationships, and stresses that the trial court has discretion to sever the family ties but is not required to do so. Respondent quotes In re Montgomery, 311 N.C. 101, 108, 316 S.E.2d 246, 251 (1984), stating that “where there is a reasonable hope that the family unit within a reasonable period of time can reunite and provide for the emotional and physical welfare of the child, the trial court is [, therefore,] given discretion not to terminate rights.” In this case, however, the trial court apparently believed the family was unable to provide for the child and had been given more than a reasonable period of time to do so.
Based on the trial court's dispositional findings, we conclude that the trial court did not abuse its discretion by determining that it was in Josh's best interests that respondent's parental rights be terminated. Accordingly, we affirm.
Affirmed. Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).