In re A.N.D.

Opinions

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-32

No. 113A21

Filed 18 March 2022

IN THE MATTER OF: A.N.D., A.N.D., and A.C.D.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 16

December 2020 by Judge V.A. Davidian III in District Court, Wake County. This

matter was calendared for argument in the Supreme Court on 22 December 2021 but

determined on the record and briefs without oral argument pursuant to Rule 30(f) of

the North Carolina Rules of Appellate Procedure.

Mary Boyce Wells for petitioner-appellee Wake County Human Services.

Michelle FormyDuval Lynch for appellee Guardian ad Litem.

Leslie Rawls for respondent-appellant father.

BERGER, Justice.

¶1 Respondent1 appeals from the trial court’s order terminating his parental

rights in A.N.D. (Andrew),2 born December 2009; A.N.D. (Adam), born February

2011; and A.C.D. (Anna), born July 2016, based on neglect and failure to show

reasonable progress in correcting the conditions which led to the removal of the

1 The trial court’s order also terminated the parental rights of the minor children’s mother, who is not a party to this appeal.

2 Pseudonyms are used throughout the opinion to protect the identities of the children

and for ease of reading.

Opinion of the Court

children from the home. We affirm the trial court’s order.

I. Factual and Procedural Background

¶2 On April 29, 2015, Wake County Human Services (DSS) filed a juvenile

petition alleging that Andrew, Adam, and “Nigel”3 were neglected juveniles. The

petition alleged that the children witnessed two domestic violence incidents between

the children’s mother and Nigel’s father and the parents had substance abuse issues.

Nigel was placed in foster care and Andrew and Adam remained in the care of their

maternal grandmother. At that time, respondent was in federal custody and unable

to provide care for Andrew and Adam.

¶3 In May 2015, the trial court found that respondent was still incarcerated with

an expected release date in October 2015, and suspended respondent’s visitation with

the children. On September 3, 2015, the court adjudicated Andrew and Adam

neglected juveniles and granted legal and physical custody to their maternal

grandmother.

¶4 On September 12, 2017, DSS filed a petition alleging Anna4 to be a neglected

juvenile. The petition alleged that the maternal grandmother was unable to obtain

timely medical care for Anna because both parents were incarcerated and could not

3 Nigel, born December 11, 2014, shares the same mother as Andrew, Adam, and Anna but has a different father. Nigel’s father is not a party to this appeal.

4 Anna is respondent’s third child. In September 2016, the mother was in a car

accident with Anna in the car. Anna was taken to the hospital, and her mother was taken into custody. After this incident, Anna was placed in the care of her maternal grandmother along with Andrew and Adam.

provide consent for treatment. Following a hearing in February 2018, the trial court

determined, and respondent agreed, that it was in Anna’s best interests for the

maternal grandmother to be appointed as Anna’s legal custodian. The trial court

adjudicated Anna as a neglected juvenile on March 14, 2018, and placed her in the

custody of the maternal grandmother along with Andrew and Adam. The trial court

suspended respondent’s visitation with Anna and ordered him to enter into a case

plan with DSS.

¶5 On September 12, 2018, the trial court entered an order granting DSS

nonsecure custody of all three children following the filing of a DSS petition alleging

that Andrew, Adam, and Anna were abused, neglected, and dependent juveniles. The

petition included allegations that the maternal grandmother had been arrested for

driving while impaired and child abuse, among other allegations. This was the

second time that the maternal grandmother had been charged with driving while

impaired and child abuse within a six-month period. At that time, the children could

not be placed with respondent, as he was residing in a “rooming house” that was not

appropriate for children, and he could not provide for their care.

¶6 The trial court entered a consent order on adjudication and disposition on

November 20, 2018. At the time of the hearing on adjudication and disposition,

respondent was incarcerated in the Wake County Detention Center following his

arrest for assault with a deadly weapon inflicting serious injury. DSS placed the

children in foster care, and the trial court suspended respondent’s visitation.

¶7 On October 11, 2019, DSS filed a motion to terminate respondent’s parental

rights in Andrew, Adam, and Anna, alleging that grounds existed for termination

based on neglect, willfully leaving the minor children in foster care without showing

reasonable progress in correcting the conditions which led to the removal of the

children from the home, and failing to pay a reasonable portion of the cost of care for

the children for a period of six months while the children remained in foster care.

¶8 In an order entered after a February 2020 hearing, the trial court found that

respondent did not cooperate with recommended services in his case plan. The

primary permanent plan was changed to adoption, with a secondary plan of

reunification. In a June 11, 2020 order, the trial court determined that respondent

resided in a “structurally sound” residence but that he refused to participate with his

case plan and failed to comply with random drug screens. The trial court further

found that respondent was not making adequate progress within a reasonable time,

and his behavior was “inconsistent with the children’s health and safety.”

¶9 The trial court determined that grounds existed to terminate respondent’s

parental rights under N.C.G.S. § 7B-1111(a)(1) and (2) and that it was in the

children’s best interests that respondent’s parental rights be terminated.

¶ 10 On appeal, respondent does not challenge the trial court’s grounds for

termination. Instead, respondent argues that the trial court abused its discretion in

concluding that it was in Andrew’s, Adam’s, and Anna’s best interests to terminate

respondent’s parental rights. Specifically, respondent argues that finding of fact 39

“misrepresents and mischaracterizes” his criminal history and the trial court failed

to consider the impact of the coronavirus pandemic and options short of termination

of his parental rights in its analysis.

II. Analysis

¶ 11 Our Juvenile Code provides a two-stage process for terminating parental

rights: an adjudication stage and a dispositional stage. See N.C.G.S. §§ 7B-1109, -

1110 (2021). At the adjudication stage, the petitioner bears the burden of proving by

“clear, cogent, and convincing evidence” the existence of one or more grounds for

termination under N.C.G.S. § 7B-1111(a). N.C.G.S. § 7B-1109(e), (f). If one or more

grounds exist for termination of parental rights, the court proceeds to the

dispositional stage. N.C.G.S. § 7B-1110(a). At the dispositional stage, the trial court

must “determine whether terminating the parent’s rights is in the juvenile’s best

interest” based on the following 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) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other

permanent placement.

(6) Any relevant consideration.

Id.

¶ 12 This Court reviews “the trial court’s dispositional findings of fact to determine

whether they are supported by competent evidence.” In re E.S., 378 N.C. 8, 2021-

NCSC-72, ¶ 11 (quoting In re J.J.B., 374 N.C. 787, 793, 845 S.E.2d 1, 5 (2020)).5 If

supported by competent evidence, the trial court’s findings are binding on appeal. In

re A.M.O., 375 N.C. 717, 720, 850 S.E.2d 884, 887 (2020). “[A]ssessment of a juvenile’s

best interest . . . is reviewed only for abuse of discretion.” In re A.R.A., 373 N.C. 190,

199, 835 S.E.2d 417, 423 (2019). A trial court’s determination in a termination-of-

parental-rights case “will remain undisturbed . . . so long as that determination is not

‘manifestly unsupported by reason or is so arbitrary that it could not have been the

result of a reasoned decision.’ ” In re A.M., 377 N.C. 220, 2021-NCSC-42, ¶ 18

(quoting In re A.U.D., 373 N.C. 3, 6–7, 832 S.E.2d 698, 700–01 (2019)).

¶ 13 Respondent first challenges finding of fact 39 for its inclusion of “duplicate

charges, dismissed charges, and charges that resulted in not guilty judgments.” In

finding of fact 39, the trial court found that respondent

5 Recently, this Court has noted that despite precedent using the term “competent evidence” in describing the applicable standard of review in such an analysis, N.C.G.S. § 7B- 906.1(c) instructs that the evidence a trial court may receive and consider need not be limited to that which is “competent.” See Matter of C.C.G., 2022-NCSC-3 n. 4.

has an extensive criminal history and has served several extended prison sentences for the following offenses: felony and misdemeanor breaking and entering, interfering with emergency communications, misdemeanor larceny, assault on a female, possession and distribution of cocaine and habitual misdemeanor assault. He was again arrested in mid-2019 and released in November 2019.

¶ 14 Respondent correctly asserts that there is no support in the record for the trial

court’s finding that he was convicted of breaking and entering and possession of

cocaine. However, a certified copy of respondent’s criminal history in the record

provides competent evidence for the remaining convictions set forth in finding of fact

39. Specifically, competent evidence in the record indicates that respondent was

previously convicted of at least one count of (1) interfering with emergency

communications; (2) misdemeanor larceny; (3) assault on a female; (4) distribution of

cocaine; and (5) habitual misdemeanor assault. Thus, competent evidence supports

the characterization of respondent’s criminal history included in finding of fact 39.

¶ 15 Respondent next argues that the trial court’s decision to terminate his parental

rights was “manifestly unsupported by reason” because the trial court failed to

consider the impact that coronavirus restrictions had on his housing and employment

as a “relevant factor” in its best interest analysis. However, respondent did not have

suitable housing before or after the filing of the October 2019 motion to terminate

parental rights. Respondent concedes this fact in his brief when he states that

“[respondent] was not able to obtain housing that would enable him to have his

children in the home.” Respondent further states in his brief that when he was not

incarcerated, there was no place in which he resided that “could accommodate the

children.”

¶ 16 Regarding employment, respondent maintained fairly steady employment

during the periods in which he was not incarcerated. While respondent was laid off

from employment at a restaurant due to coronavirus restrictions, respondent

admitted that his income increased after he was laid off and that he could have

worked but chose not to. Although coronavirus restrictions may have impacted

respondent’s housing and employment situations, respondent acknowledged that he

did not have a plan for his family and that it could take up to a year to obtain a

suitable residence.

¶ 17 Respondent here has not demonstrated that the trial court’s determination

that termination of parental rights was in the best interests of the minor children

was not the product of a reasoned decision. See In re A.U.D., 373 N.C. at 6–7, 832

S.E.2d at 700–01. The trial court properly considered the relevant statutory factors

set forth in N.C.G.S. § 7B-1110(a) before concluding that termination was in the

children’s best interests. Specifically, the trial court made the following unchallenged

findings of fact:

54. The children reside together in a licensed foster home in Franklin County, North Carolina. The children have bonded closely with their foster family and the family intends to adopt all four children.

55. The foster family has a good relationship with [respondent] and intend[s] to encourage contact between him and the children.

56. [Andrew] and [Adam], ages 10 and 9, attend Youngsville Elementary School and [are] making some academic progress. They both are diagnosed with Adjustment Disorder and they continue to receive outpatient therapy. Both children wish to remain with the foster parents because they feel safe, secure and supported in the home.

57. [Nigel], age 5, attends daycare at the Learning Experience in Franklin County and does not receive additional services. [Nigel] appears to be developmentally on-target.

58. [Anna], age 4, refers to the foster family as “mommy” and “daddy” and has strongly bonded with the family. . . .

59. There is a high likelihood of adoption for all four children.

60. Adoption is one of the children’s concurrent permanency plans, and termination of parental rights is necessary to accomplish this plan.

....

63. While it is clear that the children have a bond with [respondent] and that [respondent] loves his children, that love does not equate to an ability to provide permanence and daily parenting. These children finally have stability in their lives after many years and they are thriving.

¶ 18 These unchallenged findings of fact are binding on appeal and further show

that the trial court’s decision was not “manifestly unsupported by reason or . . . so

arbitrary that it could not have been the result of a reasoned decision.” In re A.M.,

377 N.C. 220, 2021-NCSC-42, ¶ 18 (quoting In re A.U.D., 373 N.C. at 6–7, 832 S.E.2d

at 698, 700–01). Thus, the trial court did not abuse its discretion when it terminated

respondent’s parental rights to the minor children.

¶ 19 Finally, respondent argues that the trial court did not consider “options short

of termination that would have preserved the family relationship.” However, as set

forth above, the trial court properly considered the statutory factors in N.C.G.S. § 7B-

1110(a) and determined that a permanent plan of care could only be obtained by a

“severing of the relationship between the children and [respondent].” Respondent

has again failed to show that the trial court abused its discretion by terminating his

parental rights. Therefore, we affirm the trial court’s order terminating respondent’s

parental rights.

III. Conclusion

¶ 20 The trial court did not abuse its discretion in determining that termination of

respondent’s parental rights was in the best interests of Andrew, Adam, and Anna,

and we affirm the trial court’s order.

AFFIRMED.