In re J.M.M.

• Court: Court of Appeals of North Carolina
• Decided: April 15, 2014
• Docket: 13-1263
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1263 NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

IN THE MATTER OF:

J.M., Sampson County A Juvenile. No. 11 JT 9

Appeal by respondent from orders entered 30 March 2012 by

Judge Sarah C. Seaton and 24 July 2013 by Judge Leonard W.

Thagard in Sampson County District Court. Heard in the Court of

Appeals 31 March 2014.

Warrick and Bradshaw, P.A., by Frank L. Bradshaw, for petitioner-appellee Sampson County Department of Social Services.

K & L Gates, LLP, by Leah D’Aurora Richardson, for guardian ad litem.

Mark Hayes for respondent-appellant.

DAVIS, Judge. -2- Respondent-mother (“Respondent”) appeals from the trial

court’s orders ceasing reunification efforts and terminating her

parental rights to her child “Jill.”1 We affirm.

Respondent is the mother of Jill. Jill was born 15 October

2009 in Cumberland County, North Carolina and is the subject of

this case. On 10 November 2010, the Sampson County Department

of Social Services (“DSS”) received a report that Respondent had

inappropriately disciplined Jill’s sister. The report stemmed

from an incident in which a school employee discovered a wound

on Jill’s sister’s buttocks. Pursuant to the investigation, DSS

asked Respondent about the wound and how it occurred.

Respondent stated that “she beat the child until the wound got

sticky.” However, at trial, Respondent stated that the injury

resulted from her sister spanking the child with a board.

During this investigation, DSS visited Respondent at her

home and observed that the house was unkempt and in complete

disarray. As a result of the investigation, DSS placed Jill and

her sister outside of the home and provided Respondent with a

case plan. DSS asked Respondent to complete a psychological

evaluation, attend parenting classes, and attend food and

nutrition sessions. Respondent completed the psychological

1 The pseudonym “Jill” is used throughout this opinion to protect the identity of the child and for ease of reading. -3- evaluation which yielded a diagnosis of mild mental retardation

and depressive disorder. As a result of the evaluation, it was

recommended that any contact between Respondent and her children

should be directly supervised and that Respondent attend

mentoring classes. Respondent failed to complete parenting

classes, food and nutrition classes, or the mentoring classes.

On 24 January 2011, DSS filed a petition alleging that Jill

was a neglected and dependent juvenile. DSS alleged that

Respondent had intellectual limitations, demonstrated an

inability to provide a proper home environment, and had poor

parenting skills. DSS also alleged that Jill’s father was not

capable of caring for her. DSS obtained nonsecure custody of

Jill and placed her in the home of P.B., who is the paternal

grandmother of Jill’s sister.

By order filed 13 July 2011, the trial court adjudicated

Jill to be neglected and dependent. After holding a disposition

hearing, the trial court ordered DSS to retain custody of Jill,

with placement continuing with P.B. The trial court conducted

subsequent review hearings and, on 30 March 2012, ceased

reunification efforts.

On 6 June 2013, DSS filed a motion to terminate

Respondent’s and the father’s parental rights to Jill. DSS -4- alleged that Respondent’s parental rights were subject to

termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(1)

(neglect), N.C. Gen. Stat. § 7B-1111(a)(2) (failure to make

reasonable progress), and N.C. Gen. Stat. § 7B-1111(a)(6)

(dependency). A termination of parental rights hearing was held

on 23 May 2013, after which the trial court found that all three

grounds for termination alleged in the petition existed. The

court determined that termination of Respondent’s parental

rights was in the best interests of Jill and entered an order

terminating Respondent’s rights.2 Respondent gave timely notice

of appeal.

Analysis

I. Cessation of Reunification Efforts

In her first argument on appeal, Respondent contends the

trial court erred when it ceased reunification efforts without

making the requisite findings of fact. We disagree.

“This Court reviews an order that ceases reunification

efforts to determine whether the trial court made appropriate

findings, whether the findings are based upon credible evidence,

whether the findings of fact support the trial court’s

2 The trial court also terminated the parental rights of Jill’s father. Because he did not appeal, that portion of the order is not before us. -5- conclusions, and whether the trial court abused its discretion

with respect to disposition.” In re C.M., 183 N.C. App. 207,

213, 644 S.E.2d 588, 594 (2007). “When a trial court ceases

reunification efforts with a parent, it is required to make

findings of fact pursuant to N.C. Gen. Stat. § 7B-507(b).” Id.

at 213-14, 644 S.E.2d at 594. “A trial court may cease

reunification efforts upon making a finding that further efforts

‘would be futile or would be inconsistent with the juvenile’s

health, safety, and need for a safe, permanent home within a

reasonable period of time[.]’” Id. at 214, 644 S.E.2d at 594

(quoting N.C. Gen. Stat. § 7B-507(b)(1)). Though characterized

as a finding or “ultimate finding[,]” see In re I.R.C., 214 N.C.

App. 358, 363, 714 S.E.2d 495, 499 (2011), the determination

that grounds exist to cease reunification efforts under N.C.

Gen. Stat. § 7B-507(b)(1) is, in substance, a conclusion of law

that must be supported by adequate findings of fact. Id. at

363, 714 S.E.2d at 498-99.

The trial court made the following pertinent findings of

fact:

10. That the Juvenile has been in the care of the Sampson County Department of Social Services or placed outside the removal home in excess of twelve (12) months and is placed in a structured environment. -6- 11. That the Respondent Mother has not completed her service agreement with the Department of Social Services.

12. That the Respondent Mother suffers from mild mental retardation.

. . . .

16. That the Respondent Mother relies heavily on the oldest Juvenile with caring for the siblings.

17. That the Respondent Mother desires to live in a home by herself.

22. That it is not likely that the Juvenile will be returned within the next six (6) months.

25. That the Department has made reasonable efforts in this matter to prevent or eliminate the need for placement of the Juvenile with the Department and to reunify this family.

26. That the Department is no longer required to make reasonable efforts in this matter to reunify this family pursuant to N.C. Gen. Stat. 7B-507 as those efforts would clearly be futile or would be inconsistent with the Juvenile’s health and safety, and need for a safe, permanent home within a reasonable time.

27. That the Court finds that the conditions which led to the removal of the Juvenile from the Juvenile’s home still exists and that a return of the Juvenile to said home would be contrary to the welfare -7- of the Juvenile.

The trial court concluded:

4. That pursuant to N.C. Gen. Stat. § 7B- 507, the Sampson County Department of Social Services in no longer required to make reasonable efforts in this matter to reunify this family as those efforts would clearly be futile or would be inconsistent with the Juvenile’s health and safety, and need for a safe, permanent home within a reasonable period of time.

In finding of fact 26 and in conclusion of law 4, the trial

court made the ultimate finding required under section 7B-

507(b)(1) that reunification efforts “would clearly be futile or

would be inconsistent with the Juvenile’s health and safety, and

need for a safe, permanent home within a reasonable period of

time.”

Respondent challenges the trial court’s ultimate finding on

the grounds that it did not specify which prong, “futile or

inconsistent[,]” was the basis for ceasing reunification

efforts. Respondent argues that the trial court’s failure to

specify the prong upon which it relied prohibits this Court from

applying the proper standard of review. Moreover, Respondent

contends that the trial court’s use of boilerplate language

lifted directly from the statute results in a failure by the -8- trial court to link any of its findings to the two prongs set

forth in N.C. Gen. Stat. § 7B-507(b)(1).

We conclude that unchallenged findings of fact 10 through

17, 21 and 27 support the trial court’s ultimate finding that

further reunification efforts would be futile and inconsistent

with Jill’s health and safety and her need for a permanent home

within a reasonable period of time. The court found that Jill

has been in DSS custody for over twelve months, she has been in

a structured environment for this period of time, Respondent

relies on others in caring for Jill, Respondent did not complete

her services agreement, and Respondent desires to live in a home

by herself. These findings are uncontested by Respondent and

are thus binding on appeal. In re S.N., 194 N.C. App. 142, 147,

669 S.E.2d 55, 59 (2008), aff’d per curiam, 363 N.C. 368, 677

S.E.2d 455 (2009). We conclude that the trial court’s findings

are sufficient to support its conclusion of law under N.C. Gen.

Stat. § 7B-507(b)(1), and we discern no abuse of discretion in

the trial court’s decision to cease reunification efforts under

these circumstances.

II. Termination of Parental Rights

In her second argument, Respondent asserts that the trial

court abused its discretion in concluding that the termination -9- of Respondent’s parental rights was in the best interests of

Jill. 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). When

determining whether it is in the juvenile’s best interest for

the parent’s rights to be terminated, the trial court is

required to make written findings regarding the relevant factors

enunciated in N.C. Gen. Stat. § 7B-1110(a). Id.

“We review the trial court's decision to terminate parental

rights for abuse of discretion.” In re Anderson, 151 N.C. App.

94, 98, 564 S.E.2d 599, 602 (2002). Abuse of discretion results

where the court’s ruling is manifestly unsupported by reason or

is so arbitrary that it could not have been the result of a

reasoned decision. State v. Hennis, 323 N.C. 279, 285, 372

S.E.2d 523, 527 (1988).

Here, the trial court made the following findings of fact

to support its conclusion that it was in the best interests of

Jill for Respondent’s parental rights to be terminated:

3. That the Juvenile has been placed with [P.B.] since January 24, 2011.

4. That the Juvenile is currently placed -10- in the aforesaid home with the Juvenile’s sibling.

5. That the Juvenile has adapted well in the current placement.

6. That the Juvenile is thriving in the current placement.

7. That the Juvenile is developing appropriately for her age.

8. That [P.B.] desires to adopt the Juvenile.

9. That [P.B.] and the Juvenile have developed a close bond to one another.

10. That there is little to no bond between the Juvenile and the Respondent Parents.

11. That [P.B.] understands the legal significance and the financial obligation of adopting the Juvenile.

12. That the current permanent plan for the Juvenile is adoption.

13. That the termination of parental rights of the respondents would aid in the completion of the current permanent plan for the Juvenile.

Respondent asserts finding of fact 10 — that there is

“little to no bond” between her and Jill — is unsupported by the

evidence. To support her argument, Respondent relies on

evidence suggesting that a bond did, in fact, exist between Jill

and Respondent. Respondent points to her father’s testimony

that Jill and her sister “have a loving relationship with -11- [Respondent]” and that they miss Respondent. Respondent also

cites Social Worker Dana Sutton’s testimony that (1) Jill knows

Respondent; (2) Jill and Respondent have a “loving

relationship”; and (3) DSS was recommending bi-weekly visits

between Respondent and Jill after termination because P.B.

“would like for the girls to have contact with their mom.”

However, Respondent’s argument ignores the well-established

principle that “[f]indings of fact supported by competent

evidence are binding on appeal, despite evidence in the record

that might support a contrary finding.” In re C.I.M., 214 N.C.

App. 342, 345, 715 S.E.2d 247, 250 (2011).

Here, there is competent record evidence supporting the

trial court’s finding that there is “little to no bond between

Juvenile and Respondent.” First, it is the adoptive parent who

has taken the initiative to involve Respondent in Jill’s life by

taking Jill once a month to Sampson County to visit with

Respondent. Indeed, the fact that Jill – at three years of age

— only visits with her mother once per month at her adoptive

parent’s initiative is evidence supporting the trial court’s

finding that there is little to no bond between Jill and

Respondent. Moreover, competent evidence shows that Jill has -12- been living with P.B. since she was only one year of age, which

is more than half of her life.

While Respondent cites other evidence that may have

supported a finding that there was a bond between mother and

child, the trial court’s finding of fact 10 is supported by

competent evidence and is binding on appeal. “It is not the

function of this Court to reweigh the evidence on appeal.”

Garrett v. Burris, ___ N.C. App. ___, ___, 735 S.E.2d 414, 418

(2012), aff'd per curiam, 366 N.C. 551, 742 S.E.2d 803 (2013).

Therefore, the trial court did not abuse its discretion in

determining that termination of Respondent’s parental rights was

in Jill’s best interests. See In re S.C.R., 198 N.C. App. 525,

536, 679 S.E.2d 905, 912 (2009) (holding that trial court's

findings reflected reasoned decision based upon statutory

factors listed in N.C. Gen. Stat. § 7B–1110(a) and that,

therefore, trial court did not abuse its discretion in

concluding termination of mother's parental rights was in best

interests of child).

Conclusion

For these reasons, we affirm the trial court’s orders

ceasing reunification efforts and terminating Respondent’s

parental rights. -13- AFFIRMED.

Judges HUNTER, JR. and ERVIN concur.

Report per Rule 30(e).