An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1468 NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
IN THE MATTER OF:
C.A. and B.A. Wake County Nos. 12 JT 137, 138
Appeal by Respondent-Father from order entered 3 June 2013
by Judge Margaret P. Eagles in District Court, Wake County.
Appeal by Respondent-Father and Respondent-Mother from order
entered 17 October 2013 by Judge Margaret P. Eagles in District
Court, Wake County. Heard in the Court of Appeals 22 July 2014.
Office of the Wake County Attorney, by Roger A. Askew, for Petitioner-Appellee Wake County Human Services.
Levine & Stewart, by James E. Tanner III, for Respondent- Appellant Father.
Robert W. Ewing for Respondent-Appellant Mother.
Ellis & Winters LLP, by James M. Weiss, for Guardian ad Litem.
McGEE, Judge.
Respondent-Father and Respondent-Mother (together,
“Respondents”) appeal from an order terminating their parental -2- rights as to the minor children C.A. (“Cathy”) and B.A.
(“Beth”).1 Respondent-Father separately appeals from an order
entered 3 June 2013 ceasing reunification efforts with his
daughter Cathy. We affirm.
Wake County Human Services (“WCHS”) filed a juvenile
petition on 22 May 2012, alleging Cathy and Beth (“the
children”) to be abused and neglected juveniles. Cathy, just
two months old, had been diagnosed as suffering from a fracture
in her foot and multiple fractured ribs, which doctors
determined were caused by non-accidental means. WCHS obtained
non-secure custody of the children and placed them, pursuant to
a safety plan, in the care of Cathy’s paternal grandmother
(“Cathy’s grandmother”).
The parties entered a memorandum of understanding on 25 May
2012, documenting the history of Respondent-Mother’s involvement
with WCHS, the injuries to Cathy, the services recommended for
and agreed to by Respondents, and the services to be provided to
the children. The parties also entered into stipulations of fact
regarding Cathy’s injuries; Respondent-Mother’s prior history
with WCHS, including that Respondent-Mother relinquished her
1 Pseudonyms are used throughout to protect the identity of the children and for ease of reading. Respondent-Father is the biological father of Cathy and is not related to Beth. Beth’s father is not a party to this appeal. -3- parental rights to three older children; and Respondent-Mother’s
history of substance abuse and “instability.” After a hearing
on 18 July 2012, and based in part on the stipulated facts, the
trial court entered an order on 7 August 2012, adjudicating the
children to be neglected juveniles and Cathy to also be an
abused juvenile. The trial court continued custody of the
children with WCHS and sanctioned their placement with Cathy’s
grandmother. The trial court directed WCHS to continue to make
reasonable efforts to eliminate the need for placement of the
children outside of their home, and ordered Respondents to
comply with detailed case plans set forth in the order.
WCHS removed the children from the home of Cathy’s
grandmother in January 2013 and placed them in a licensed foster
home. Cathy’s grandmother sought to keep Cathy, who was her
biological granddaughter, but stated she did not want to keep
Beth in her home. Cathy’s grandmother was not willing to
participate in Beth’s recommended in-home mental health therapy,
and she also needed monthly respite from Cathy and Beth.
Cathy’s grandmother filed a motion to intervene and a complaint
for custody of Cathy on 27 March 2013.
Respondent-Mother was incarcerated on charges of child
abuse of Cathy, larcency, and aiding and abetting larcency. -4- Therefore, Respondent-Mother’s ability to work on her case plan
was delayed until February 2013. Shortly after starting work on
her case plan, Respondent-Mother began missing parenting classes
and failed a drug screen for marijuana. The failed drug screen
constituted a violation of Respondent-Mother’s conditions of
probation, and she was incarcerated for twenty-four hours on 15
March 2013.
Respondent-Father did not understand why he had to
participate in services ordered by the trial court, and
indicated that he wanted Cathy’s grandmother to be Cathy’s
caretaker. Respondent-Father did not consistently visit with
Cathy following Cathy’s removal from her grandmother’s home, and
he also missed an appointment for a substance abuse evaluation.
Respondent-Father moved into his girlfriend’s home, and he
admitted the girlfriend’s home was not suitable for Cathy.
Due to Respondents’ inability to make progress on their
case plans, the trial court entered an order on 3 June 2013
ceasing reunification efforts and setting the permanent plan for
the children as adoption. That same day, the trial court
entered an order denying Cathy’s grandmother’s motion to
intervene. Respondent-Father filed notice of intent to preserve -5- his right to appeal from the order ceasing reunification
efforts.
WCHS filed a motion to terminate Respondent-Father’s
parental rights as to Cathy, and Respondent-Mother’s parental
rights as to both Cathy and Beth on 9 July 2013. WCHS alleged
grounds to terminate Respondent-Mother’s parental rights based
on neglect, failure to make reasonable progress to correct the
conditions that led to the removal of the children from her
care, and dependency. See N.C. Gen. Stat. § 7B-1111(a)(1), (2),
(6) (2013). WCHS alleged grounds to terminate Respondent-
Father’s parental rights as to Cathy based on neglect, failure
to legitimate the child, and failure to make reasonable progress
to correct the conditions that led to the removal of Cathy from
his care. See N.C. Gen. Stat. § 7B-1111(a)(1), (2), (5) (2013).
After a hearing on 10 September 2013, the trial court
entered an order on 17 October 2013 terminating Respondents’
parental rights. The trial court concluded that: (1) grounds
existed to terminate Respondent-Mother’s parental rights under
N.C. Gen. Stat. § 7B-1111(a)(1), (2) and (6); (2) that grounds
existed to terminate Respondent-Father’s parental rights under
N.C. Gen. Stat. § 7B-1111(a)(1) and (2); and (3) that
termination of Respondents’ parental rights was in the -6- children’s best interests. Respondents filed timely notices of
appeal from the trial court’s termination order.
I.
We first address Respondent-Father’s argument that the
trial court abused its discretion when it set adoption as the
permanent plan for the children in its 3 June 2013 order that
also ceased reunification efforts. Respondent-Father contends
the trial court should have awarded custody or guardianship of
Cathy to Cathy’s grandmother. We find no abuse of discretion in
the trial court’s decision.
In setting a permanent plan for children, the trial court’s
goal is to “develop a plan to achieve a safe, permanent home for
the juvenile within a reasonable period of time.” N.C. Gen.
Stat. § 7B-907(a) (2011).2 To accomplish this, the trial court
may,
appoint a guardian of the person for the juvenile pursuant to G.S. 7B-600 or make any disposition authorized by G.S. 7B-903 including the authority to place the child in the custody of either parent or any
2 The North Carolina General Assembly repealed N.C. Gen. Stat. § 7B-907 and replaced it with N.C. Gen. Stat. § 7B-906.1 for juvenile actions filed or pending on or after 1 October 2013. See 2013 N.C. Sess. Laws 129, § 25, 41 (June 19, 2013). Because the trial court entered its permanency planning order, that is presently before this Court, in May 2013, we review its order under N.C. Gen. Stat. § 7B-907. -7- relative found by the court to be suitable and found by the court to be in the best interest of the juvenile.
N.C. Gen. Stat. § 7B-907(c) (2011). N.C. Gen. Stat. § 7B-903
prioritizes placements of juveniles with a family member:
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) (2013). We review a trial
court’s determination regarding the best interests of a child
for an abuse of discretion. In re Pittman, 149 N.C. App. 756,
766, 561 S.E.2d 560, 567, appeal dismissed and disc. review
denied, 356 N.C. 163, 568 S.E.2d 608, 609 (2002), cert. denied
sub nom. Harris-Pittman v. Nash County Dep’t of Soc. Servs., 538
U.S. 982, 155 L. Ed. 2d 673 (2003). An abuse of discretion
occurs when the trial court’s challenged actions are “manifestly
unsupported by reason.” In re R.B.B., 187 N.C. App. 639, 648,
654 S.E.2d 514, 521 (2007), disc. review denied, 362 N.C. 235,
659 S.E.2d 738 (2008).
[W]hen a trial judge sits as both judge and -8- 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[.]
In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435
(1984) (quotation marks omitted). This Court will not
substitute its judgment on the weight of the evidence for that
of the trial court.
The trial court granted custody of Cathy and Beth to WCHS
and sanctioned the placement of the children with Cathy’s
grandmother, but the children were removed from the home of
Cathy’s grandmother in January 2013 and placed in a licensed
foster home. [R p. 78 FOF#8] In an order from a placement
review hearing held 3 April 2013, the trial court sanctioned the
children’s placement in the foster home and made several
findings of fact as to why Cathy’s placement with her
grandmother was not in Cathy’s best interests:
Although [Cathy’s grandmother] is able and willing to provide care and supervision of [Cathy] on a permanent basis, for the following reasons it is not in [Cathy’s] best interests to be placed in [her grandmother’s] home:
a. [Cathy’s grandmother] wants to keep her biological granddaughter, [Cathy], but has been vocal that she did not want to keep -9- [Beth] in her home;
b. [Cathy’s grandmother] was not willing to participate in the recommended in-home mental health therapy for [Beth];
c. [Cathy’s grandmother] indicated that she needed monthly respite from the children, which has been provided for both children since 2012. Providing respite on this frequent a basis is not usual protocol for relative or foster care placements;
d. The two children have a very strong attachment to each other and it is in [Cathy’s] best interest to be in the same placement with [Beth]. [Respondent-Mother] has expressed that she wants the children to be placed together, and WCHS has set a clear goal to have the children placed together, which is supported by the GAL.
e. [Beth], who has some behavior issues was removed from [Respondent-Mother’s] home before the age of two [and] then lived for several months with [Cathy’s grandmother], who indicated that she was having difficulty in dealing with some of the child’s behaviors. [Beth] has shown marked improvements with her behavior in the two months since placed in the foster home.
In its 3 June 2013 permanency planning order, the trial court,
after hearing testimony on the placement of the children with
Cathy’s grandmother, re-adopted these findings and concluded
that there had been no new developments or changes to this
issue. The trial court set the permanent plan for Cathy as
adoption and continued custody of Cathy with WCHS. -10- Respondent-Father argues that the trial court’s ultimate
conclusion not to place Cathy with her grandmother is an abuse
of discretion because it arbitrarily chose preservation of
Cathy’s relationship with Beth over that with her grandmother.
Respondent-Father also contends that the trial court’s findings
(b) and (e) relate only to Beth’s relationship with Cathy’s
grandmother and have no bearing on Cathy’s best interests.
Additionally, Respondent-Father argues that, at the time of the
hearing, Cathy was only ten months old and could not have had a
strong attachment to Beth, and that Respondent-Mother’s desire
to keep the children together should not outweigh Respondent-
Father’s wish that Cathy live with her grandmother.
Evidence at the permanency planning hearing established
that Cathy was deeply attached to Beth, and the goal of both
WCHS and the children’s guardian ad litem was to keep the
children together. The trial court is permitted to conclude that
maintaining the bond and relationship between Cathy and Beth
outweighs that of the bond between Cathy’s grandmother and
Cathy. Moreover, the inability of Cathy’s grandmother to
provide for the care of both children without respite, and her
unwillingness to provide the care needed by Beth, are certainly -11- relevant to any decision the trial court made regarding the
permanent plan for both children.
While the trial court could have given greater weight to
Respondent-Father’s wishes or to the bond between Cathy and her
grandmother, its decision not to do so does not amount to a
manifest abuse of discretion. We hold the trial court’s
conclusion not to place Cathy with her grandmother, nor to adopt
a permanent plan for Cathy of guardianship, nor to grant custody
to Cathy’s grandmother, does not amount to an abuse of
discretion. Accordingly, we affirm the trial court’s order
ceasing reunification efforts between Respondent-Father and
Cathy.
II.
Next, we address Respondent-Father’s argument that the
trial court erred in concluding that grounds existed to
terminate his parental rights pursuant to N.C. Gen. Stat. § 7B-
1111(a)(2). This Court reviews orders terminating parental
rights for “whether the findings of fact are supported by clear,
cogent and convincing evidence and whether these findings, in
turn, support the conclusions of law.” In re Shepard, 162 N.C.
App. 215, 221-22, 591 S.E.2d 1, 6 (citations and quotation marks
omitted), disc. review denied sub nom. In re D.S., 358 N.C. -12- 543, 599 S.E.2d 42 (2004). A trial court’s findings of fact
that an appellant does not specifically dispute on appeal “are
deemed to be supported by sufficient evidence and are binding on
appeal.” In re M.D., 200 N.C. App. 35, 43, 682 S.E.2d 780, 785
(2009). However, “[t]he trial court’s conclusions of law are
fully reviewable de novo by the appellate court.” In re S.N.,
194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008) (quotation
marks omitted), aff’d per curiam, 363 N.C. 368, 677 S.E.2d 455
(2009).
A trial court may terminate parental rights where
[t]he parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.
N.C. Gen. Stat. § 7B-1111(a)(2) (2013). “Willfulness” under §
7B-1111(a)(2) may be proven by showing “the respondent had the
ability to show reasonable progress, but was unwilling to make
the effort.” In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d
169, 175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341
(2001). -13- In the case before the Court, the trial court made numerous
findings of fact regarding Respondent-Father’s willful failure
to make reasonable progress to correct the conditions that led
to the removal of Cathy from the home. The trial court found
that, in the initial adjudication and disposition order,
Respondent-Father was ordered to: (1) consistently visit with
Cathy; (2) obtain and maintain housing and employment sufficient
for himself and Cathy; (3) complete a substance abuse evaluation
and follow through with all recommendations; (4) complete a
mental health evaluation and follow through with all
recommendations; (5) complete a domestic violence treatment
program and demonstrate learned skills; (6) complete a positive
parenting class and demonstrate learned skills; (7) resolve all
criminal matters and refrain from further criminal activity; and
(8) maintain regular contact with his social worker. The trial
court found that Respondent-Father had not consistently visited
with Cathy, having only visited seven times out of the last
twenty-eight possible visitations and only four times in the
past nine months. The trial court further found that
Respondent-Father, since the adjudication hearing, had lived
with his girlfriend in a home that he had stated to the social
worker would not be suitable for Cathy. The trial court also -14- found that, although Respondent-Father claimed he had
employment, he had not provided pay stubs to verify his
employment and had not provided any financial assistance for
Cathy. Respondent-Father had also not completed a parenting
class, mental health assessment, substance abuse assessment, or
domestic violence program, as ordered. Additionally, since the
adjudication hearing, Respondent-Father had been charged with
possession of illegal substances. The charge was pending at the
time of the termination hearing, and Respondent-Father testified
that the charges would be dismissed if he completed a substance
abuse class.
Respondent-Father concedes that he did very little of what
the trial court ordered in its dispositional order and he does
not challenge any of the trial court’s findings of fact. The
findings are thus binding on this Court. Rather, Respondent-
Father argues he should not be required to comply with the case
plan set forth by the trial court in the initial adjudication
and disposition order because it does not address the conditions
that led to the removal of Cathy from the home.
Respondent-Father, however, agreed in the 25 May 2012
memorandum of understanding that he was willing to follow the
recommendations of WCHS to obtain a substance abuse and mental -15- health assessment and to maintain stable housing and employment.
Moreover, Respondent-Father did not appeal from the trial
court’s adjudication and disposition order and, thus, is
estopped from challenging the findings and conclusions made
therein in this appeal. See In re Wheeler, 87 N.C. App. 189,
194, 360 S.E.2d 458, 461 (1987) (“The doctrine of collateral
estoppel operates to preclude parties from retrying fully
litigated issues that were decided in any prior determination
and were necessary to the prior determination.”) (citation and
quotation marks omitted)). Accordingly, the trial court did not
err in measuring Respondent-Father’s progress based upon the
case plan outlined in the trial court’s initial adjudication and
disposition order.
We hold the trial court’s findings of fact fully support
its conclusion that Respondent-Father willfully left Cathy in
foster care for more than twelve months without making
reasonable progress toward correcting the conditions that led to
Cathy’s removal from the home. Despite agreeing to a case plan
with WCHS and being repeatedly ordered to meet the conditions
set forth in the initial adjudication and disposition order,
Respondent-Father refused to comply with those requirements and
instead insisted that Cathy be placed with her grandmother. -16- Accordingly, we hold the trial court did not err in concluding
grounds existed to terminate Respondent-Father’s parental rights
as to Cathy pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).
Because the trial court did not err in terminating Respondent-
Father’s parental rights pursuant to N.C. Gen. Stat. § 7B-
1111(a)(2), we need not address Respondent-Father’s arguments
regarding the ground of neglect. In re P.L.P., 173 N.C. App. 1,
8, 618 S.E.2d 241, 246 (2005), aff’d per curiam, 360 N.C. 360,
625 S.E.2d 779 (2006).
III.
In Respondent-Mother’s appeal, she first argues the trial
court abused its discretion when it failed to conduct, sua
sponte, a hearing into whether a guardian ad litem (GAL) should
have been appointed to represent her interests in this matter.
Respondent-Mother contends that her history of serious mental
health problems put the trial court on notice that she was
either incompetent or that she had a diminished capacity and
could not adequately act in her own interest. We disagree.
“A trial judge has a duty to properly inquire into the
competency of a litigant in a civil trial or proceeding when
circumstances are brought to the judge’s attention, which raise
a substantial question as to whether the litigant is non compos -17- mentis.” In re J.A.A., 175 N.C. App. 66, 72, 623 S.E.2d 45, 49
(2005). “‘Whether the circumstances . . . are sufficient to
raise a substantial question as to the party’s competency is a
matter to be initially determined in the sound discretion of the
trial judge.’” Id. (quoting Rutledge v. Rutledge, 10 N.C. App.
427, 432, 179 S.E.2d 163, 166 (1971)). “A ruling committed to a
trial court’s discretion is to be accorded great deference and
will be upset only upon a showing that it was so arbitrary that
it could not have been the result of a reasoned decision.”
White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
At the time of the termination hearing, N.C. Gen. Stat. §
7B-1101.1(c) authorized the appointment of a GAL, “if the court
determines that there is a reasonable basis to believe that the
parent is incompetent or has diminished capacity and cannot
adequately act in his or her own interest.” N.C. Gen. Stat. §
7B-1101.1(c) (2011). However, our General Assembly amended
N.C.G.S. § 7B-1101.1(c), applicable to all cases pending on or
filed after 1 October 2013, such that a trial court may now only
appoint a GAL “for a parent who is incompetent in accordance
with G.S. 1A-1, Rule 17.” N.C. Gen. Stat. § 7B-1101.1(c)
(2013); 2013 N.C. Sess. Laws 129, §§ 32, 41. Accordingly,
because the trial court could no longer appoint a GAL for -18- Respondent-Mother based on diminished capacity, Respondent-
Mother’s argument in this regard is moot. Cf. Davis v. Zoning
Board of Adjustment of Union County, 41 N.C. App. 579, 582, 255
S.E. 2d 444, 446 (1979) (holding that “all questions raised have
been rendered moot by the amendments to the Union County Zoning
Ordinance”).
Under the amended version of N.C. Gen. Stat. § 7B-
1101.1(c), Respondent-Mother would be entitled to the
appointment of a GAL on remand only if she were found to be
incompetent. An incompetent adult is defined as one “who lacks
sufficient capacity to manage the adult’s own affairs or to make
or communicate important decisions concerning the adult’s
person, family, or property whether the lack of capacity is due
to mental illness, mental retardation, epilepsy, cerebral palsy,
autism, inebriety, senility, disease, injury, or similar cause
or condition.” N.C. Gen. Stat. § 35A-1101(7) (2013). While
Respondent-Mother’s mental health and substance abuse issues
certainly negatively affected her personal life and ability to
parent the children, we see no evidence in the record suggesting
her problems resulted in a lack of capacity to manage her own
affairs or to make or communicate important decisions. -19- Respondent-Mother attended a child planning conference at
the beginning of the case and entered into a voluntary
memorandum of understanding with WCHS regarding the issues of
placement of the children, visitation with the children, and
services for herself and the children. Respondent-Mother also
signed stipulations to evidentiary facts to be used in the trial
court’s initial adjudication and disposition order. Respondent-
Mother testified on her own behalf at the termination hearing
and in the May 2013 permanency planning hearing. Nothing in
Respondent-Mother’s testimony suggests she was not competent to
participate in either hearing. Moreover, the record establishes
that Respondent-Mother knew what was expected of her in order
for her to be reunited with her children; that she participated
in some substance abuse treatment, mental health assessments and
treatment, and parenting classes; however, she was unwilling to
complete the necessary treatment and classes. Based on the
foregoing, we hold the fact that the trial court did not inquire
into Respondent-Mother’s competency sua sponte does not amount
to an abuse of discretion, and we overrule this argument.
Respondent-Mother also argues the trial court erred in
concluding that grounds existed to terminate her parental rights
based on dependency pursuant to N.C. Gen. Stat. § 7B-1111(a)(6). -20- Respondent-Mother has not, however, challenged the trial court’s
conclusions that grounds also existed to terminate her parental
rights based on neglect and failure to make reasonable progress
to correct the conditions that led to the removal of the
children from her home pursuant to N.C. Gen. Stat. § 7B-
1111(a)(1) and (2). The unchallenged grounds are sufficient to
support the trial court’s order terminating Respondent-Mother’s
parental rights, and we need not consider her arguments relating
solely to the ground of dependency. In re J.M.W., 179 N.C. App.
788, 791-92, 635 S.E.2d 916, 918-19 (2006). Accordingly, we
affirm the trial court’s order as to the termination of
Respondent-Mother’s parental rights as to the children.
For the reasons stated herein, we affirm the trial court’s
3 June 2013 order ceasing reunification efforts and setting the
children’s permanent plan as that of adoption, and the trial
court’s 17 October 2013 order terminating Respondents’ parental
rights.
Affirmed.
Judges STEELMAN and ERVIN concur.
Report per Rule 30(e).