In Re DRF

693 S.E.2d 235
CourtCourt of Appeals of North Carolina
DecidedMay 18, 2010
DocketCOA09-1716
StatusPublished

This text of 693 S.E.2d 235 (In Re DRF) 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 DRF, 693 S.E.2d 235 (N.C. Ct. App. 2010).

Opinion

693 S.E.2d 235 (2010)

In the Matter of D.R.F., a Minor Child.

No. COA09-1716.

Court of Appeals of North Carolina.

May 18, 2010.

*237 W. Hackney High, Jr., Edenton, for Chowan County Department of Social Services, petitioner-appellee.

N.C. Administrative Office of the Courts, by Appellate Counsel Pamela Newell, for Guardian ad Litem.

Peter Wood, Raleigh, for respondent-appellant mother.

Jeffrey L. Miller, Greenville, for respondent-appellant father.

JACKSON, Judge.

Both respondent-father and respondent-mother ("respondents") appeal the 1 October 2009 order terminating their parental rights to the minor child, D.R.F. For the reasons stated herein, we affirm.

Respondents are the natural parents of D.R.F., who was born in September 2007. When D.R.F. was born, the Chowan County Department of Social Services ("DSS") already had custody of respondent-mother's three older children, and respondent-father was in jail on three counts of child abuse based upon his interactions with respondent-mother's other children. DSS took custody of D.R.F. on 6 November 2007 after respondent-mother violated orders prohibiting her from having any contact with respondent-father and from allowing her children to have any contact with him. On 7 November 2007, D.R.F. was placed with a licensed foster care family ("foster parents") with whom she continues to reside. Following a hearing on 19 December 2007, the trial court adjudicated D.R.F. a neglected juvenile and ordered, inter alia, that DSS remain responsible for the care and placement of D.R.F., that respondents be allowed supervised visits with D.R.F. at the discretion of DSS, and that respondents comply with the requirements of their case plans.

At both the 19 December 2007 and 19 March 2008 hearings, respondents were ordered to provide information as to relatives who may be able to care for D.R.F., but neither respondent could suggest an appropriate placement. At a 2 September 2008 meeting, almost ten months after D.R.F. was taken into DSS custody, respondents first informed DSS that respondent-father's aunt and her husband ("paternal relatives") were willing to be considered as a placement for D.R.F. The paternal relatives were unaware of D.R.F.'s being in foster care until September 2008. Beginning on 11 October 2008, D.R.F. had regular visits with her paternal relatives. A kinship assessment of the paternal relatives revealed "no issues or concerns."

On 21 October 2008, based upon a permanency planning hearing held on 3 September 2008, the trial court ordered concurrent plans of reunification of D.R.F. with respondents and guardianship with a relative or adoption. Following another permanency planning hearing, the trial court entered a 5 November 2008 order "reliev[ing] [DSS] of its duty to use reasonable efforts to prevent the need for the placement of [D.R.F.]" and requiring DSS to "work[ ] towards the permanent plan of guardianship with a relative or adoption." On 20 November 2008, the trial judge recused himself from the permanency planning hearing scheduled for 17 December 2008, but the reason for the recusal is not set forth in the record before us. Another trial judge presided over the 17 December 2008 and 13 January 2009 permanency planning hearings and ordered, inter alia, that the permanent plan for D.R.F. be adoption by her foster parents, that DSS proceed with filing an action to terminate respondents' parental rights, and that the paternal relatives continue to have a minimum of four hours of visitation with D.R.F. each month.

On 13 March 2009, DSS filed a motion to terminate respondents' parental rights. At the 18 June 2009 adjudication hearing, both respondents, through counsel, stipulated to a finding of past neglect. In a 7 August 2009 adjudication order, the trial court found that grounds existed for termination based upon respondents' stipulation, testimony from the social worker, and prior court orders. During several dispositional hearings, the trial court heard evidence as to the appropriateness of placement with the paternal relatives *238 as compared to adoption by the foster parents, including the recommendation of D.R.F.'s guardian ad litem ("GAL") that "it is still in the best interest of the child that she be placed with the relatives (aunt and uncle)." In a 1 October 2009 order, the trial court found, inter alia, that "it is in [D.R.F.'s] best interest to be adopted by the foster family" and granted DSS's motion for termination of respondents' parental rights. The trial judge who previously had recused himself from a permanency planning hearing presided over both the adjudication and disposition hearings. Respondents appeal the 1 October 2009 order.

Initially, we note that respondent-mother and respondent-father filed separate briefs to this Court. However, two of their arguments—the sufficiency of the trial court's findings as to neglect and the trial court's potential abuse of discretion in preferring adoption by the foster parents to placement with the paternal relatives—coincide. The final argument discussed herein—whether the trial judge erred in failing to recuse himself from the termination of parental rights hearing—is raised only by respondent-father.

Respondents first contend that the trial court's termination of their parental rights based upon neglect was erroneous, because the stipulation was not sufficient to support a finding of neglect and the trial court made no finding as to the likelihood of repetition of neglect. Because respondents did not appeal the 7 August 2009 adjudication order, we do not address this argument.

"[Rule 3(d) of the North Carolina Rules of Appellate Procedure] requires that a notice of appeal designate the order from which appeal is taken." In re A.L.A., 175 N.C.App. 780, 782, 625 S.E.2d 589, 590-91 (2006). An order remains final and valid when no appeal is taken from it. In re Wheeler, 87 N.C.App. 189, 194, 360 S.E.2d 458, 461 (1987). In an unpublished opinion, which is not binding on this Court but which we find persuasive, application of these principles required us to decline to review an adjudication order from which respondent-mother had failed to appeal. In re D.D., 182 N.C.App. 765, 643 S.E.2d 83, 2007 WL 1119687 (unpublished). See Kelly v. Kelly, 167 N.C.App. 437, 443, 606 S.E.2d 364, 369 (2004).

In the case sub judice, respondents appeal only the 1 October 2009 disposition order, according to their respective notices of appeal. Therefore, the 7 August 2009 adjudication order remains valid and final, and we do not address respondents' alleged errors as to that order.

Second, respondents argue that the trial court abused its discretion when it preferred adoption by D.R.F.'s foster parents, who have cared for her since 7 November 2007, over a kinship placement. We disagree.

A termination of parental rights proceeding is held in two phases, the adjudication stage and the disposition stage. In re Mills, 152 N.C.App. 1, 6, 567 S.E.2d 166, 169 (2002).

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Related

White v. White
324 S.E.2d 829 (Supreme Court of North Carolina, 1985)
In Re Mills
567 S.E.2d 166 (Court of Appeals of North Carolina, 2002)
Matter of Wheeler
360 S.E.2d 458 (Court of Appeals of North Carolina, 1987)
In Re Key
643 S.E.2d 452 (Court of Appeals of North Carolina, 2007)
Kelly v. Kelly
606 S.E.2d 364 (Court of Appeals of North Carolina, 2004)
State v. Love
630 S.E.2d 234 (Court of Appeals of North Carolina, 2006)
In re A.L.A.
625 S.E.2d 589 (Court of Appeals of North Carolina, 2006)
In re D.D.
643 S.E.2d 83 (Court of Appeals of North Carolina, 2007)
In re D.R.F.
693 S.E.2d 235 (Court of Appeals of North Carolina, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
693 S.E.2d 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-drf-ncctapp-2010.