An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NO. COA13-936 NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
IN THE MATTER OF:
A.M.M. and N.M. Guilford County Nos. 11 JT 327-28
Appeal by petitioner from order entered 23 April 2013 by
Judge K. Michelle Fletcher in Guilford County District Court.
Heard in the Court of Appeals 27 March 2014.
Mercedes O. Chut, for petitioner-appellant C.E.K.
Assistant Appellate Defender J. Lee Gilliam, for respondent-appellee father.
Michael E. Casterline, for respondent-appellee mother.
David E. Sherrill, for guardian ad litem.
CALABRIA, Judge.
C.E.K. (“petitioner”) appeals from an order dismissing her
petition to terminate the parental rights of H.M.K.M.
(“respondent-mother”) and A.N.M. (“respondent-father”)
(collectively “respondents”) to their minor children A.M.M. -2- (“Anne”) and N.M. (“Nathan”)1 (collectively “the juveniles”).
Since the trial court did not abuse its discretion in concluding
and ordering that the termination of parental rights was not in
the best interests of the juveniles, we affirm.
Respondents are the juveniles’ biological parents.
Petitioner is the biological grandmother and adoptive mother of
respondent-mother. DSS became involved with the family through
reports that, inter alia, respondents did not have stable
housing. DSS placed the juveniles with petitioner pursuant to a
safety plan. Respondent-mother agreed not to disrupt the
placement.
Although the juveniles flourished under petitioner’s care,
DSS was concerned about petitioner’s age2. DSS recommended that
petitioner establish a permanent “backup plan” for the juveniles
in case something should happen to her. Petitioner learned from
reaching out to friends and members of her church that J.S.K.
and T.K.K. (“the Kings”)3 were seeking to adopt children.
Petitioner met the Kings in April 2011, and the juveniles moved
1 We use these pseudonyms to protect the juveniles’ privacy and for ease of reading. 2 Petitioner was seventy-four at the time of the hearing on the petition to terminate parental rights. 3 A pseudonym. -3- into the Kings’ home on 15 June 2011. The Kings have served as
the juveniles’ sole caretakers since that date.
On 2 June 2011, petitioner filed a petition to terminate
respondents’ parental rights, alleging grounds of abandonment
and neglect. After a hearing, the trial court entered an order
on 23 April 2013, finding grounds to terminate respondents’
parental rights on the basis of abandonment. However, the trial
court concluded that since there was no legal placement in
effect, and the juveniles were not placed with the Kings by an
agency as defined by N.C. Gen. Stat. § 48-1-101(4) (2013), a
legal guardian as defined by N.C. Gen. Stat. § 48-1-101(8)
(2013), or by either respondent-parent, there was no one with
authority to petition for a termination of parental rights in
order to accomplish permanency for the juveniles. The court
ordered that terminating respondents’ parental rights was not in
the juveniles’ best interests, and dismissed the petition.
Petitioner appeals.
Since respondents did not appeal the grounds for
terminating their parental rights, there is no dispute regarding
the ground of abandonment. The issue to determine is whether,
in the dispositional phase of the proceeding, the trial court
abused its discretion in ordering that terminating respondents’ -4- parental rights was not in the best interests of the juveniles.
Petitioner specifically argues that the trial court failed to
consider criteria mandated by N.C. Gen. Stat. § 7B-1110. We
disagree.
“After 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). We review
the trial court’s decision to terminate parental rights for an
abuse of discretion “and will reverse a court’s decision only
where it is ‘manifestly unsupported by reason.’” In re S.N.,
194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008) (citation
omitted), aff’d per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
To determine whether it is in a juvenile’s best interest to
terminate parental rights, the trial court must consider and
make written findings regarding the following relevant criteria:
(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- (5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a) (2013).
As an initial matter, petitioner supports her argument that
the trial court erred in failing to make specific findings that
termination of parental rights was not in the juveniles’ best
interests by citing In re Matherly, 149 N.C. App. 452, 454, 562
S.E.2d 15, 17 (2002). However, Matherly applies a previous
version of N.C. Gen. Stat. § 7B-1110, which mandated termination
of parental rights upon the conclusion that a ground to
terminate existed unless the court determined that the best
interests of the juvenile required that parental rights not be
terminated. N.C. Gen. Stat. § 7B-1110(a) (1999). The General
Assembly deleted the mandatory termination language from the
statute in 2005. See 2005 N.C. Sess. Laws 398, § 17.
Therefore, the trial court is no longer required to presume
termination of parental rights is in the juveniles’ best
interests. Instead, the trial court must consider and make
written findings regarding the relevant criteria set forth in
N.C. Gen. Stat. § 7B-1110(a) (2013). -6- In the instant case, the trial court made findings on all
the relevant criteria, including the juveniles’ dates of birth,
the likelihood of adoption, the accomplishment of a permanent
plan, the bond between the juveniles and respondents, and the
quality of the relationship between the juveniles and the
proposed adoptive parents. Specifically, the trial court found
that the juveniles’ bond with respondent-father was “non-
existent,” that Anne had a minimal bond with respondent-mother,
and that Nathan had no bond at all with respondent-mother. The
juveniles did, however, have a strong bond with the Kings, with
positive reports about their development and family interactions
in that household. The juveniles were happy and thriving, doing
well at school, and had developed local friendships. The Kings
had appropriately addressed some of the juveniles’ behavioral
issues, and the juveniles’ behavior had shown significant
improvement with the Kings’ supervision. The court further
found that the Kings were highly motivated to adopt the
juveniles, but that the Kings did not have standing to file an
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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.
NO. COA13-936 NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
IN THE MATTER OF:
A.M.M. and N.M. Guilford County Nos. 11 JT 327-28
Appeal by petitioner from order entered 23 April 2013 by
Judge K. Michelle Fletcher in Guilford County District Court.
Heard in the Court of Appeals 27 March 2014.
Mercedes O. Chut, for petitioner-appellant C.E.K.
Assistant Appellate Defender J. Lee Gilliam, for respondent-appellee father.
Michael E. Casterline, for respondent-appellee mother.
David E. Sherrill, for guardian ad litem.
CALABRIA, Judge.
C.E.K. (“petitioner”) appeals from an order dismissing her
petition to terminate the parental rights of H.M.K.M.
(“respondent-mother”) and A.N.M. (“respondent-father”)
(collectively “respondents”) to their minor children A.M.M. -2- (“Anne”) and N.M. (“Nathan”)1 (collectively “the juveniles”).
Since the trial court did not abuse its discretion in concluding
and ordering that the termination of parental rights was not in
the best interests of the juveniles, we affirm.
Respondents are the juveniles’ biological parents.
Petitioner is the biological grandmother and adoptive mother of
respondent-mother. DSS became involved with the family through
reports that, inter alia, respondents did not have stable
housing. DSS placed the juveniles with petitioner pursuant to a
safety plan. Respondent-mother agreed not to disrupt the
placement.
Although the juveniles flourished under petitioner’s care,
DSS was concerned about petitioner’s age2. DSS recommended that
petitioner establish a permanent “backup plan” for the juveniles
in case something should happen to her. Petitioner learned from
reaching out to friends and members of her church that J.S.K.
and T.K.K. (“the Kings”)3 were seeking to adopt children.
Petitioner met the Kings in April 2011, and the juveniles moved
1 We use these pseudonyms to protect the juveniles’ privacy and for ease of reading. 2 Petitioner was seventy-four at the time of the hearing on the petition to terminate parental rights. 3 A pseudonym. -3- into the Kings’ home on 15 June 2011. The Kings have served as
the juveniles’ sole caretakers since that date.
On 2 June 2011, petitioner filed a petition to terminate
respondents’ parental rights, alleging grounds of abandonment
and neglect. After a hearing, the trial court entered an order
on 23 April 2013, finding grounds to terminate respondents’
parental rights on the basis of abandonment. However, the trial
court concluded that since there was no legal placement in
effect, and the juveniles were not placed with the Kings by an
agency as defined by N.C. Gen. Stat. § 48-1-101(4) (2013), a
legal guardian as defined by N.C. Gen. Stat. § 48-1-101(8)
(2013), or by either respondent-parent, there was no one with
authority to petition for a termination of parental rights in
order to accomplish permanency for the juveniles. The court
ordered that terminating respondents’ parental rights was not in
the juveniles’ best interests, and dismissed the petition.
Petitioner appeals.
Since respondents did not appeal the grounds for
terminating their parental rights, there is no dispute regarding
the ground of abandonment. The issue to determine is whether,
in the dispositional phase of the proceeding, the trial court
abused its discretion in ordering that terminating respondents’ -4- parental rights was not in the best interests of the juveniles.
Petitioner specifically argues that the trial court failed to
consider criteria mandated by N.C. Gen. Stat. § 7B-1110. We
disagree.
“After 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). We review
the trial court’s decision to terminate parental rights for an
abuse of discretion “and will reverse a court’s decision only
where it is ‘manifestly unsupported by reason.’” In re S.N.,
194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008) (citation
omitted), aff’d per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
To determine whether it is in a juvenile’s best interest to
terminate parental rights, the trial court must consider and
make written findings regarding the following relevant criteria:
(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- (5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a) (2013).
As an initial matter, petitioner supports her argument that
the trial court erred in failing to make specific findings that
termination of parental rights was not in the juveniles’ best
interests by citing In re Matherly, 149 N.C. App. 452, 454, 562
S.E.2d 15, 17 (2002). However, Matherly applies a previous
version of N.C. Gen. Stat. § 7B-1110, which mandated termination
of parental rights upon the conclusion that a ground to
terminate existed unless the court determined that the best
interests of the juvenile required that parental rights not be
terminated. N.C. Gen. Stat. § 7B-1110(a) (1999). The General
Assembly deleted the mandatory termination language from the
statute in 2005. See 2005 N.C. Sess. Laws 398, § 17.
Therefore, the trial court is no longer required to presume
termination of parental rights is in the juveniles’ best
interests. Instead, the trial court must consider and make
written findings regarding the relevant criteria set forth in
N.C. Gen. Stat. § 7B-1110(a) (2013). -6- In the instant case, the trial court made findings on all
the relevant criteria, including the juveniles’ dates of birth,
the likelihood of adoption, the accomplishment of a permanent
plan, the bond between the juveniles and respondents, and the
quality of the relationship between the juveniles and the
proposed adoptive parents. Specifically, the trial court found
that the juveniles’ bond with respondent-father was “non-
existent,” that Anne had a minimal bond with respondent-mother,
and that Nathan had no bond at all with respondent-mother. The
juveniles did, however, have a strong bond with the Kings, with
positive reports about their development and family interactions
in that household. The juveniles were happy and thriving, doing
well at school, and had developed local friendships. The Kings
had appropriately addressed some of the juveniles’ behavioral
issues, and the juveniles’ behavior had shown significant
improvement with the Kings’ supervision. The court further
found that the Kings were highly motivated to adopt the
juveniles, but that the Kings did not have standing to file an
adoption petition at that time. According to these findings,
the trial court considered the relevant criteria mandated by
N.C. Gen. Stat. § 7B-1110(a), and concluded there was no legal -7- placement in effect since the juveniles were not properly placed
with the Kings.
Petitioner, however, contends that the trial court erred in
failing to consider her bond with the juveniles as part of the
relevant statutory criteria. N.C. Gen. Stat. § 7B-1110(a)(4)
requires the trial court to make findings of fact about the bond
between the juveniles and their parents, while N.C. Gen. Stat. §
7B-1110(a)(5) requires findings about the bond between the
juveniles and the “proposed adoptive parent, guardian,
custodian, or other permanent placement.” N.C. Gen. Stat. § 7B-
1110(a)(4), (5) (2013). Although the juveniles were placed with
petitioner as part of a safety plan, DSS neither filed a
juvenile petition nor designated petitioner as a permanent
placement. In addition, petitioner knew that the Kings were
interested in adopting the juveniles. Since petitioner is
neither the juveniles’ parent, nor a proposed adoptive parent,
guardian, custodian, or other permanent placement, the trial
court was not required to make findings of fact regarding her
bond with the juveniles pursuant to N.C. Gen. Stat. § 7B-
1110(a)(4) or (5).
Petitioner further argues the trial court erred in finding
that termination of parental rights would not achieve permanence -8- for the juveniles. Petitioner contends that permanence for the
juveniles is only possible through adoption, which is not
possible without the termination of respondents’ parental
rights, and that the juveniles are in legal limbo as a result of
the trial court’s order.
The purpose of the juvenile code is to ensure that the best
interests of the juveniles are of paramount consideration, and
for juveniles to be placed in a safe, permanent home within a
reasonable amount of time. N.C. Gen. Stat. § 7B-100 (2013).
However, in the instant case, the trial court found that DSS’
failure to file a petition in district court deprived the court
of an opportunity to determine whether either of the respondents
could become an adequate parent for the juveniles. In addition,
the trial court concluded since the juveniles were not placed
with the Kings by an agency as defined by N.C. Gen. Stat. § 48-
1-101(4), a legal guardian as defined by N.C. Gen. Stat. § 48-1-
101(8), or by either respondent-parent, an order for the
termination of parental rights would effectively render the
juveniles legal orphans. Under these circumstances, the court
made a reasoned decision by determining that termination of
parental rights was not in the juveniles’ best interests. -9- Petitioner also challenges several findings of fact.
However, we need not address those arguments because it is not
necessary to determine whether the challenged findings support
the trial court’s conclusion that termination of respondents’
parental rights was not in the juveniles’ best interests
pursuant to N.C. Gen. Stat. § 7B-1110(a). Therefore, any error
in the findings would not constitute reversible error. In re
T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006).
The trial court’s order addresses all the relevant criteria
of N.C. Gen. Stat. § 7B-1110(a). In addition, the trial court
came to a reasoned decision regarding the best interests of the
juveniles and did not abuse its discretion in ordering that
terminating respondents’ parental rights was not in the
juveniles’ best interests. Accordingly, we affirm the trial
court’s order dismissing the petition for termination of
respondents’ parental rights.
Affirmed.
Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).