In re A.B.K.

808 S.E.2d 928, 257 N.C. App. 540
CourtCourt of Appeals of North Carolina
DecidedJanuary 16, 2018
DocketNo. COA17-792
StatusPublished

This text of 808 S.E.2d 928 (In re A.B.K.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.B.K., 808 S.E.2d 928, 257 N.C. App. 540 (N.C. Ct. App. 2018).

Opinion

DILLON, Judge.

Mother appeals from an order terminating her parental rights to her minor children, "Andy" and "Hayden."1 The order also terminates the rights of the children's father, who is not a party to this appeal. Because the trial court properly considered the dispositional factors in N.C. Gen. Stat. § 7B-1110(a) (2015) and did not otherwise abuse its discretion in determining the children's best interests, we affirm.

I. Background

In September 2015, Mecklenburg County Youth and Family Services ("YFS") removed one-month-old Andy and seven-year-old Hayden from Mother's care and filed a juvenile petition alleging neglect and dependency. See N.C. Gen. Stat. § 7B-101(9), (15) (2015). The petition alleged that YFS had been involved with the family since August 2014, primarily to address Mother's chronic homelessness and Father's lack of appropriate housing for the children. It further cited an incident of domestic violence ("DV") between the parents in the children's presence in August 2015.

In February 2016, the trial court adjudicated the children neglected and dependent. In its dispositional order, the trial court found that Mother was living with Father in his parents' home, which was "not suitable for any child[.]" Mother had acknowledged her "DV relationship with the father" and had attended her visitations in October, November, and December 2015 "with black eyes and scratches to her face[.]" The trial court found that Hayden was receiving "trauma-focused therap[y]," having been hospitalized for severe behavioral problems.

Addressing the barriers to reunification, the trial court found the parents' "problems include but are not necessarily limited to DV, inappropriate housing, and chronic homelessness." It ordered Mother and Father to comply with their YFS Family Services Agreement ("FSA") and advised them as follows:

Both parents need to comply if reunification is going to occur and the parents are going to remain together. The father shall get himself clean and make the necessary emotional changes to cease his DV behaviors. The parents will not reunify with the juveniles if the DV continues.

The court authorized YFS to suspend Mother's supervised visitation with Hayden "[i]f she appears under the influence or battered[.]"

After another DV episode with Father, Mother made some initial progress in complying with her FSA: she obtained a DV protective order against Father and began residential substance abuse treatment at CASCADE. Father refused to engage in services and was convicted of assaulting Mother, resulting in a period of incarceration followed by probation.

In July 2016, however, Mother began seeing Father again and eventually moved back in with him. She left CASCADE and "had a relapse of abuse of alcohol which resulted in her going to the hospital where she stopped breathing, where her life was in danger." Following a permanency planning review hearing, the trial court changed the primary permanent plan for the children from reunification to adoption and directed YFS to pursue termination of parental rights ("TPR").

In November 2016, YFS filed a TPR motion and filed an amended motion eight days later. In early 2017, the trial court held a hearing on the motion over three days and entered its TPR order. In its order, the court adjudicated grounds to terminate the parental rights of Mother and Father for neglecting the children, for failing to make reasonable progress to correct the conditions that led YFS to take custody of the children in September 2015, and for failing to pay a reasonable portion of the children's cost of care.2 N.C. Gen. Stat. § 7B-1111(a)(1)-(3) (2015). The court further concluded that TPR was in the best interest of each child. Mother appealed.

II. Analysis

On appeal, Mother does not challenge the trial court's conclusion that grounds exist to terminate her parental rights under N.C. Gen. Stat. § 7B-1111(a). Rather, she claims the trial court abused its discretion in choosing TPR as the appropriate disposition for Andy and Hayden under N.C. Gen. Stat. § 7B-1110(a). She notes that the children were not in an adoptive placement at the time of the termination hearing and that Hayden's ongoing behavior difficulties make him less likely to be adopted than Andy, creating the risk that the brothers would be separated in order to facilitate Andy's adoption. Furthermore, given Hayden's strong attachment to her, Mother contends it is contrary to his best interest "[t]o suddenly terminate all visitation and contact between [them]."

"After an adjudication that one or more grounds for terminating a parent's rights exist" under N.C. Gen. Stat. § 7B-1111(a), the trial court must "determine whether terminating the parent's rights is in the juvenile's best interest." N.C. Gen. Stat. § 7B-1110(a). The court must consider the following factors in making its determination:

(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 . Dispositional findings of fact are binding on appeal if they are supported by any competent evidence, see In re C.M ., 183 N.C. App. 207, 212, 644 S.E.2d 588, 593 (2007), or are not specifically challenged by the respondent-parent, see Koufman v. Koufman , 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). "As a discretionary decision, the trial court's disposition [under N.C. Gen. Stat. § 7B-1110(a) ] will not be disturbed unless it could not have been the product of reasoning." In re A.J.M.P. , 205 N.C. App. 144, 152, 695 S.E.2d 156, 161 (2010).

The trial court's dispositional findings reflect its thoughtful assessment of Mother's prospects of providing a safe and stable home for her children, as follows:

8. [Mother] and [Father] have been in a thirteen-year domestic violence relationship. [Mother] professes she loves him and would find it difficult to be alone.
....
11. [Mother] was receiving a myriad of services from Cascade. ...

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Related

Koufman v. Koufman
408 S.E.2d 729 (Supreme Court of North Carolina, 1991)
In Re Ajmp
695 S.E.2d 156 (Court of Appeals of North Carolina, 2010)
In re C.M.
644 S.E.2d 588 (Court of Appeals of North Carolina, 2007)
In re A.J.M.P.
205 N.C. App. 144 (Court of Appeals of North Carolina, 2010)

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Bluebook (online)
808 S.E.2d 928, 257 N.C. App. 540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-abk-ncctapp-2018.