Opinion
No. COA13–271.
2013-08-6
In the Matter of R.A.M. and M.J.B.
Assistant County Attorney Robin K. Martinek for Petitioner Durham County Department of Social Services. Appellate Defender Staples Hughes, by Assistant Appellate Defender Joyce L. Terres, for Respondent-mother.
Appeal by Respondent from orders entered 3 February 2010 by Judge Ann McKown and 10 December 2012 by Judge Brian C. Wilks in Durham County District Court. Heard in the Court of Appeals 1 July 2013. Assistant County Attorney Robin K. Martinek for Petitioner Durham County Department of Social Services. Appellate Defender Staples Hughes, by Assistant Appellate Defender Joyce L. Terres, for Respondent-mother.
Parker, Poe, Adams & Bernstein, LLP, by Benjamin R. Sullivan, for Guardian ad litem.
STEPHENS, Judge.
Respondent appeals from the trial court's order terminating her parental rights to her minor children, R.A.M. (“Robby”) and M.J.B (“Mark”). We affirm.
Pseudonyms are used to protect the juveniles' identities and for ease of reading. N.C.R.App. P. 3.1(b).
Robby and Mark are brothers. The Durham County Department of Social Services (“DSS”) filed a juvenile petition on 11 October 2007 alleging that Robby, Mark, and their siblings were dependent and neglected children. They were adjudicated neglected and dependent by order entered 7 May 2008. Several review hearings were held over the course of the next four years, and, on 18 May 2012, the trial court entered a permanency planning order which ceased reunification efforts and changed the plan for Robby and Mark to adoption.
On 11 June 2012, DSS filed a motion to terminate Respondent's parental rights, alleging (1) neglect under N.C. Gen.Stat. § 7B–1111(a)(1), (2) failure to make reasonable progress under N.C. Gen.Stat. § 7B–1111(a)(2), and (3) failure to pay for Robby and Mark's cost of care under N.C. Gen.Stat. § 7B–1111(a)(3). After a hearing on that motion, the trial court entered an order on 10 December 2012 terminating Respondent's parental rights to the juveniles. The court concluded that all three alleged grounds for termination of Respondent's parental rights were present and that termination was in the best interests of Robby and Mark. Respondent filed timely notice of appeal.
Respondent also gave notice of appeal from a 3 February 2010 review order relieving DSS of its obligation to continue reunification efforts. The record before this Court does not establish, however, that Respondent properly preserved her right to appeal from that order as required by N.C. Gen.Stat. §§ 7B–507(c) and 7B–1001. Further, Respondent only seeks appellate review of the 10 December 2012 order in her brief. Accordingly, our review in this matter is limited to the December order terminating Respondent's parental rights.
Counsel for Respondent has filed a no-merit brief on Respondent's behalf. Counsel states that she has made “a conscientious and thorough review of the [r]ecord on [a]ppeal and all materials in the underlying case files.” Accordingly, counsel concludes “that there is no issue of merit on which to base an argument for relief and ... this appeal would be frivolous.” Pursuant to Rule 3.1(d), counsel requests that this Court conduct an independent examination of the case. SeeN.C.R.App. P. 3.1(d).
In accordance with Rule 3.1, counsel sent Respondent a letter, dated 3 April 2013, which advised Respondent of counsel's inability to find error, counsel's request for this Court to conduct an independent review of the record, and Respondent's right to file her own arguments directly with this Court within thirty days of the date of the filing of counsel's no-merit brief. Counsel attached a copy of the transcript and her brief to that letter, having provided Respondent with a copy of the record on appeal at an earlier date. Shortly thereafter, counsel learned that the letter was erroneously sent to Respondent's previous address. As a result, counsel (1) sent Respondent a second letter on 17 April 2013, which outlined the same information discussed in her original letter; (2) reattached the documents appended to that letter; and (3) informed Respondent that counsel had submitted a motion to extend the filing deadline for any pro se brief Respondent wished to file. That motion was granted on 2 May 2013 and the filing deadline was extended to 17 May 2013. Respondent has failed to file any arguments with this Court.
Though counsel was unable to uncover any issues of merit on which to base her brief, she directs our attention to two potential issues on appeal: first, whether the trial court erred by concluding that grounds existed to terminate Respondent's parental rights for failure to pay a portion of the cost of care for Robby and Mark because there was insufficient evidence of Respondent's ability to pay to support that conclusion; and, second, whether the trial court abused its discretion by concluding that the termination of Respondent's parental rights was in Robby and Mark's best interests because Respondent had a “noticeable bond” with her children.
Counsel concedes that any error regarding the first potential issue would not affect the ultimate outcome of this appeal because the trial court properly based its termination of Respondent's parental rights on two other grounds, neglect and failure to make reasonable progress. See In re P.L.P., 173 N.C.App. 1, 8, 618 S.E.2d 241, 246 (2005) (“[W]here the ... court finds multiple grounds on which to base a termination of parental rights, and an appellate court determines there is at least one ground to support a conclusion that parental rights should be terminated, it is unnecessary to address the remaining grounds.”) (citation and quotation marks omitted), affirmed per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006). Counsel also concedes that, given the trial court's findings that Robby and Mark have not lived with Respondent for approximately five years and currently have a strong bond with their potential adoptive father, Respondent cannot make any meritorious argument that the trial court abused its discretion by lending greater weight to their bond with the potential adoptive father than with Respondent. See In re Whisnant, 71 N.C.App. 439, 441, 322 S.E.2d 434, 435 (1984) (“[W]hen a trial judge sits as both judge and juror, as he or she does in a non-jury proceeding, it is that judge's duty to weigh and consider all competent evidence[ ] and pass upon the credibility of the witnesses, the weight to be given their testimony[,] and the reasonable inferences to be drawn therefrom.”) (citation and quotation marks omitted).
Robby and Mark refer to their potential adoptive father as “Pa” or “Papa.”
After carefully reviewing the transcript and record, we are unable to find any possible prejudicial error in the trial court's order. The trial court's findings of fact fully supported the grounds of neglect and failure to make reasonable progress used to support its conclusion that termination of Respondent's parental rights was in the best interests of Robby and Mark. SeeN.C. Gen.Stat. §§ 7B–1110–11 (2011). Accordingly, we find no prejudicial error and hold that the trial court did not abuse its discretion in terminating Respondent's parental rights to her children, Robby and Mark.
AFFIRMED.
Report per Rule 30(e).