In re J.R.

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2014
• Docket: 13-1019
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1019 NORTH CAROLINA COURT OF APPEALS Filed: 6 May 2014 IN THE MATTER OF: Mecklenburg County Nos. 10 JT 305-06 J.R. and J.R.

Appeal by respondent-mother from orders entered 11 April

2012, 15 June 2012, and 14 June 2013 by Judge Regan A. Miller in

Mecklenburg County District Court. Heard in the Court of

Appeals 14 April 2014.

J. Edward Yeager, Jr., for Mecklenburg County Department of Social Services, Division of Youth and Family Services, petitioner-appellee.

Smith Moore Leatherwood LLP, by Carrie A. Hanger and Kip D. Nelson, for guardian ad litem.

Mark Hayes for respondent-appellant mother.

ERVIN, Judge.

Respondent-Mother Latricia D. appeals from the trial

court’s orders authorizing the Division of Youth and Family

Services of the Mecklenburg County Department of Social Services

to cease efforts to reunify her with her minor children, J.L.R. -2- and J.A.R.,1 and terminating her parental rights in John and

James. After careful consideration of Respondent-Mother’s

challenges to the trial court’s orders in light of the record

and the applicable law, we conclude that the trial court’s

orders should be affirmed.

I. Factual Background

On 12 May 2010, the YFS filed a juvenile petition alleging

that John and James were neglected and dependent juveniles. On

14 September 2010, the children were adjudicated neglected and

dependent juveniles and continued in YFS custody, with YFS being

ordered to make reasonable efforts to reunify the children with

Respondent-Mother and with Respondent-Mother being ordered to

comply with the provisions of a Family Services Agreement.

After a review hearing held on 2 December 2010, the court

found that Respondent-Mother had “made no substantial progress

toward reunification” and ordered that the children remain in

YFS custody. On 2 February 2011, the court adopted a permanent

plan providing for the reunification of John and James with

Respondent-Mother and a concurrent plan for the children of

guardianship and adoption. The permanent plan for the children

remained unchanged until a permanency planning hearing held on

1 J.L.R. and J.A.R. will be referred to as John and James, pseudonyms used for ease of reading and to protect the juveniles’ privacy. -3- 14 March 2012, at which point the trial court found that

Respondent-Mother had “made little progress” and “has too much

to accomplish for the children to be placed with her within six

months.” By means of an order entered on 11 April 2012, the

trial court changed the permanent plan for John and James to

adoption and ordered YFS to initiate a termination of parental

rights proceeding within 60 days. After a subsequent permanency

planning hearing held on 15 June 2012, the trial court

authorized the cessation of efforts to reunify Respondent-Mother

with John and James.

On 2 May 2012, YFS filed a petition seeking to have

Respondent-Mother’s parental rights in John and James terminated

based upon allegations of neglect, willfully leaving the

children in foster care for more than twelve months without

making reasonable progress to correct the conditions that led to

their removal from the home, willfully failing to pay a

reasonable portion of the cost of the care provided for the

children, and willfully abandoning the children. At the

conclusion of a multi-day evidentiary hearing, the trial court

entered an order finding the existence of all of the grounds for

termination alleged in the YFS petition, determining that

termination of Respondent-Mother’s parental rights in John and

James would be in their best interests, and terminating -4- Respondent-Mother’s parental rights in the children.2

Respondent-Mother noted an appeal to this Court from the trial

court’s order.

II. Substantive Legal Analysis

A. Cessation of Reunification Efforts

1. Appealability

As an initial matter, we note that, although the trial

court explicitly ordered the cessation of efforts to reunify

Respondent-Mother with John and James in the 15 June 2012 order,

the 11 April 2012 order changing the permanent plan from

reunification to adoption and ordering YFS to initiate a

proceeding terminating Respondent-Mother’s parental rights in

the children implicitly authorized the cessation of

reunification efforts. See In re A.P.W., __ N.C. App. __, __,

741 S.E.2d 388, 391 (holding that the trial court implicitly

authorized the cessation of reunification efforts when it

directed the Department of Social Services to petition for the

termination of a parent’s parental rights and changed the

permanent plan to one of adoption), disc. review denied, __ N.C.

__, 747 S.E.2d 251 (2013). For that reason, the operative order

for purposes of our review of the trial court’s order is the 11

2 The trial court also terminated the parental rights of the children’s father, who has not sought appellate review of that determination. -5- April 2012 order, in which the trial court implicitly authorized

the cessation of efforts to reunify Respondent-Mother with John

and James, rather than the 15 June 2012 order, in which the

trial court explicitly authorized the cessation of such

reunification efforts.

As a result of the fact that her notice of appeal did not

challenge any of the trial court’s orders other than the order

terminating her parental rights in John and James, Respondent-

Mother filed a petition seeking the issuance of a writ of

certiorari allowing for appellate review of the order

authorizing the cessation of efforts to reunify Respondent-

Mother with the children. Although YFS contends that

Respondent-Mother failed to preserve her right to seek appellate

review of the order authorizing the cessation of reunification

efforts, we conclude that Respondent-Mother has properly

preserved her right to challenge the order authorizing the

cessation of efforts to reunify her with the children, obviating

the necessity for us to consider whether to issue the requested

writ of certiorari.

“At any hearing at which the court orders that

reunification efforts shall cease, the affected parent,

guardian, or custodian may give notice to preserve the right to

appeal that order in accordance with [N.C. Gen. Stat. §] 7B- -6- 1001.” N.C. Gen. Stat. § 7B-507(c). According to N.C. Gen.

Stat. § 7B-1001(a)(5)(a):3

a. The Court of Appeals shall review the order to cease reunification together with an appeal of the termination of parental rights order if all of the following apply:

1. A motion or petition to terminate the parent’s rights is heard and granted.

2. The order terminating parental rights is appealed in a proper and timely manner.

3. The order to cease reunification is identified as an issue in the record on appeal of the termination of parental rights.

As the record presented for our review in this case reflects, a

petition to terminate Respondent-Mother’s parental rights in

John and James was heard and granted, Respondent-Mother noted an

appeal from the trial court’s termination order in a timely

manner, and Respondent-Mother identified the order authorizing 3 Effective for actions filed or pending after 1 October 2013, 2013 N.C. Sess. L. c. 129, s. 41, the General Assembly amended N.C. Gen. Stat. § 7B-1001(b) to provide that “notice to preserve the right to appeal [an order authorizing the cessation of reunification efforts] shall be given in writing by a proper party as defined in [N.C. Gen. Stat. §] 7B-1002 and shall be made within 30 days after entry and service of the order in accordance with” N.C. Gen. Stat. § 1A-1, Rule 58. 2013 N.C. Sess. L. c. 129,s. 31. As a result of the fact that the orders at issue in this proceeding were entered well in advance of 1 October 2013, however, the amendment to N.C. Gen. Stat. § 7B- 1001(b) worked by 2013 N.C. Sess. L. c. 129, s. 31, does not apply to this case. -7- the cessation of reunification efforts as one which she wished

to challenge before this Court in the record on appeal. As a

result, in light of our conclusion that Respondent-Mother has

properly preserved her right to challenge the order authorizing

the cessation of reunification efforts on appeal, we dismiss her

petition for the issuance of a writ of certiorari as moot and

will proceed to an examination of Respondent-Mother’s challenge

to the validity of the trial court’s decision to end YFS’

responsibility for attempting to reunify Respondent-Mother with

John and James.

2. Sufficiency of Trial Court’s Findings

In her brief, Respondent-Mother contends that the trial

court erred in the course of authorizing the cessation of

efforts to reunify her with John and James on the grounds that

the trial court failed to make the findings of fact required by

N.C. Gen. Stat. § 7B-507(b). More specifically, Respondent-

Mother contends that the trial court’s decision to authorize the

cessation of reunification efforts should be overturned on

appeal on the grounds that the 11 April 2012 and 15 June 2012

orders lack any findings of fact addressing the futility of

further efforts to reunify Respondent-Mother with John and James

or the consistency of such reunification efforts with the

children’s health, safety, and need for a permanent home within -8- a reasonable period of time. We do not find Respondent-Mother’s

argument persuasive.

The trial court may authorize the cessation of efforts to

reunify children with a parent in the event that it makes

written findings of fact to the effect that “[s]uch efforts

clearly 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.” N.C. Gen. Stat. § 7B-

507(b)(1). As the Supreme Court has recently held, however, a

trial court’s findings of fact “need not recite the statutory

language [of N.C. Gen. Stat. §] 7B-507 verbatim,” so that the

ultimate task faced by an appellate court reviewing a challenge

to an order authorizing the cessation of reunification efforts

is determining “whether the trial court’s findings of fact

address the substance of the statutory requirements.” In re

L.M.T., __ N.C. __, __, 752 S.E.2d 453, 454 (2013).

In this case, the trial court found as a fact in the 11

April 2012 order that Respondent-Mother was “depending on

receiving [d]isability to secure what she needs to establish a

safe home for the children”; that Respondent-Mother “ha[d] made

little progress during this review period”; that Respondent-

Mother “must secure housing and stable income”; that Respondent-

Mother “was the victim of domestic violence” and “must address -9- that concern, too”; that “[i]t is not possible for the children

to be returned to either parent within six months”; and that

Respondent-Mother “has too much to accomplish for the children

to be placed with her within six months.” In light of these

findings, we conclude that the trial court adequately addressed

the issues specified in N.C. Gen. Stat. § 7B-507(b),

necessitating the further conclusion that, since the trial court

did not err by authorizing the cessation of efforts to reunify

Respondent-Mother with John and James, its decision to terminate

Respondent-Mother’s parental rights in John and James was not

undermined by the issuance of an invalid order authorizing the

cessation of efforts to reunify her with the children.

B. Termination of Parental Rights

In her second challenge to the trial court’s order,

Respondent-Mother contends that the trial court erred at the

dispositional stage of its termination of parental rights order

by finding that John and James did not have a strong bond with

Respondent-Mother and determining, on the basis of that and

other findings, that adoption was in the children’s best

interests. More particularly, Respondent-Mother argues that the

undisputed record evidence established that John and James loved

Respondent-Mother and had a strong bond with her and that the

trial court’s unsupported finding to the contrary rendered its -10- determination that termination of Respondent-Mother’s parental

rights in John and James was in the children’s best interests an

abuse of discretion. We do not find Respondent-Mother’s

“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). As part of the

dispositional process, the trial court must consider the factors

enunciated in N.C. Gen. Stat. § 7B-1110(a) and make written

findings relating to such of those factors as are relevant to

the case under consideration. 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). “A trial court may be reversed for abuse of discretion

only upon a showing that its actions are ‘manifestly unsupported

by reason.’” Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114,

118 (2006) (quoting Clark v. Clark, 301 N.C. 123, 129, 271

S.E.2d 58, 63 (1980)).

In the dispositional portion of its termination order, the

trial court found that “[t]he children recognize [Respondent-

Mother] as their mother, but do not have a strong bond with

[her], as characterized by their need for the therapeutic -11- support of [their therapist] prior to preparation for an

extended visitation over the holiday period of December 2012.”

In spite of Respondent-Mother’s arguments to the contrary, we

believe that this finding of fact has adequate evidentiary

support. Among other things, the record contains evidence

tending to show that John and James had been out of Respondent-

Mother’s custody for approximately twenty-eight months by the

time of the termination hearing. During that twenty-eight month

period, Respondent-Mother visited the children nine or ten

times. A social worker assisting Respondent-Mother testified

that, prior to an extended visit scheduled for December 2012,

John and James “were going through some anxiety,” so that an

additional therapy session for the children was recommended.

John and James’ foster mother testified that, while the children

have a bond with Respondent-Mother, they do not ask when they

might be able to return to her home. In addition, the

children’s therapist testified that the children had been out of

Respondent-Mother’s care for two years, that John and James are

not the same children that they were when they were removed from

Respondent-Mother’s custody, and that they would need to

reconnect with Respondent-Mother in the event that they were

returned to her care. Thus, although the record does, as

Respondent-Mother notes, contain evidence tending to support a -12- different determination with respect to the issue of the

strength of the children’s bond with Respondent-Mother, the

challenged finding has more than sufficient evidentiary support.

As a result, given that Respondent-Mother’s sole challenge to

the sufficiency of the evidence to support the trial court’s

findings of fact lacks merit and the fact that our review of the

dispositional portion of the termination order demonstrates that

the trial court appropriately considered and made written

findings concerning the relevant dispositional factors, we have

no basis for overturning the dispositional portion of the trial

court’s termination order.

III. Conclusion

Thus, for the reasons set forth above, none of Respondent-

Mother’s challenges to the trial court’s orders have merit. As

a result, the trial court’s orders authorizing the cessation of

efforts to reunify Respondent-Mother with the children and

terminating Respondent-Mother’s parental rights in the children

should be, and hereby are, affirmed.

AFFIRMED.

Judges ROBERT N. HUNTER, JR., and DAVIS concur.

Report per Rule 30(e).