IN THE SUPREME COURT OF NORTH CAROLINA
2021-NCSC-141
No. 366A20
Filed 5 November 2021
IN THE MATTER OF: N.C.E. and N.D.C.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from orders entered on 29 April
2020 by Judge Meader W. Harriss III in District Court, Pasquotank County. This
matter was calendared for argument in the Supreme Court on 30 September 2021
but determined on the record and briefs without oral argument pursuant to Rule 30(f)
of the North Carolina Rules of Appellate Procedure.
Frank P. Hiner IV for petitioner-appellee Pasquotank County Department of Social Services.
Chelsea K. Barnes for appellee Guardian ad Litem.
Robert W. Ewing for respondent-appellant mother.
HUDSON, Justice.
¶1 Respondent-mother appeals from the trial court’s orders terminating her
parental rights to N.C.E. (Nathan) and N.D.C. (Nick).1 Because we hold the trial court
did not abuse its discretion by concluding that it was in Nathan’s and Nick’s best
interests to terminate respondent-mother’s parental rights, we affirm the trial court’s
orders.
1 Pseudonyms are used to protect the identity of the juveniles. IN RE N.C.E. AND N.D.C.
Opinion of the Court
I. Factual and Procedural Background
¶2 During a thunderstorm on the evening of 18 August 2018, respondent-mother
left then twenty-month-old Nathan on the front porch of the maternal grandmother’s
temporary residence. After leaving, respondent-mother called the maternal
grandmother to let her know that Nathan was on the porch and that respondent-
mother would be back to pick him up in the morning. The maternal grandmother
reported this incident to the Elizabeth City Police Department.
¶3 A law enforcement officer and a social worker with the Pasquotank County
Department of Social Services (DSS) responded to the maternal grandmother’s
residence. The maternal grandmother was unable to provide respondent-mother’s
location or the location of Nathan’s younger brother, Nick, and respondent-mother
did not respond to attempts to contact her. The social worker initiated a Child
Protective Services investigation and determined that neither the maternal
grandmother nor the children’s maternal aunt (with whom the maternal
grandmother was residing) were willing or able to provide care for Nathan on an
ongoing basis.
¶4 On 20 August 2018, after learning that DSS had opened an investigation,
Nick’s purported paternal grandmother brought him to DSS. The purported paternal
grandmother stated that she often cared for Nick. The next day, respondent-mother
and Nick’s purported paternal grandmother reported to DSS along with several other IN RE N.C.E. AND N.D.C.
parties. A domestic incident occurred at the agency which resulted in a law
enforcement officer taking respondent-mother into custody, whereupon she requested
that DSS take custody of Nathan and Nick.
¶5 On 22 August 2018, DSS filed separate juvenile petitions in District Court,
Pasquotank County, alleging that Nathan and Nick were neglected and dependent
juveniles. On 17 October 2018, the trial court entered an adjudication order
concluding that Nathan and Nick were neglected and dependent juveniles. See
N.C.G.S. § 7B-101(9), (15) (2019). In a disposition order entered the same day, the
trial court ordered that respondent-mother participate in a Parenting Capacity
Evaluation and follow all recommendations, participate in outpatient mental health
counseling/therapy addressing anger management and parenting education, secure
employment and stable independent housing, keep all scheduled visitations with her
children, maintain weekly contact with DSS regarding her whereabouts, and meet
with a social worker monthly. The trial court allowed respondent-mother two hours
of weekly supervised visitation with the children. The trial court granted DSS custody
and placement authority over the children and ordered DSS to place the children in
a licensed foster home or other court-approved placement.
¶6 On 18 December 2018, the matter came on for a ninety-day review hearing. In
the resulting order entered on 30 January 2019, the trial court ordered that DSS
continue to provide for and arrange placement of the children in a licensed foster IN RE N.C.E. AND N.D.C.
home or any other home approved by the court.
¶7 On 24 May 2019, the trial court entered a permanency-planning order. The
trial court set the permanent plan for the children as reunification with a concurrent
plan of custody with a relative or court-approved caretaker. The trial court also
ordered that if respondent-mother “ha[d] not done the items ordered [by the next
review hearing], [DSS] shall recommend changing the permanent plan to adoption.”
The matter came on for review on 27 August 2019. In its 10 October 2019
permanency-planning order, the trial court set the permanent plan for the children
as adoption and the concurrent plan as reunification. The trial court ordered DSS to
file a petition to terminate respondent-mother’s parental rights.
¶8 On 3 December 2019, DSS filed separate petitions for termination of
respondent-mother’s parental rights in Nathan and Nick. With respect to each child,
DSS alleged that respondent-mother had neglected the children within the meaning
of N.C.G.S. § 7B-1111(a)(1); willfully left the children in foster care or placement
outside the home for more than twelve months without showing to the satisfaction of
the court that reasonable progress under the circumstances had been made in
correcting those conditions which led to the children’s removal within the meaning of
N.C.G.S. § 7B-1111(a)(2); and for a continuous period of six months next preceding
the filing of the petition to terminate her parental rights, willfully failed to pay a
reasonable portion of the children’s cost of care in DSS custody although physically IN RE N.C.E. AND N.D.C.
and financially able to do so within the meaning of N.C.G.S. § 7B-1111(a)(3).
¶9 On 11 March 2020, the trial court conducted an adjudication hearing on DSS’s
petitions to terminate respondent-mother’s parental rights in Nathan and Nick. On
29 April 2020, the trial court entered orders adjudicating grounds for termination of
respondent-mother’s parental rights and concluded that as alleged by DSS, grounds
existed under N.C.G.S. § 7B-1111(a)(1), (2), and (3).
¶ 10 On 23 March 2020, the trial court conducted a disposition hearing. It concluded
that termination of respondent-mother’s parental rights was in the best interests of
Nathan and Nick. Accordingly, in orders entered 29 April 2020, the trial court
terminated respondent-mother’s parental rights in both children. Respondent-
mother appeals.
II. Analysis
¶ 11 Respondent-mother does not contest the trial court’s adjudication of grounds
to terminate her parental rights under N.C.G.S. § 7B-1111(a)(1)–(3). She confines her
appeal to challenging the trial court’s dispositional determination under N.C.G.S. §
7B-1110(a), that it was in the children’s best interests to terminate her parental
rights.
¶ 12 At the disposition stage of a termination-of-parental-rights proceeding, the
trial court must “determine whether terminating the parent’s rights is in the IN RE N.C.E. AND N.D.C.
juvenile’s best interest[s].” N.C.G.S. § 7B-1110(a) (2019). In making its
determination,
[t]he court may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the best interests of the juvenile. In each case, the court shall consider the following criteria and make written findings regarding the following that are relevant:
(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. “Although the trial court must consider each of the factors in N.C.G.S. § 7B-
1110(a), written findings of fact are required only ‘if there is conflicting evidence
concerning the factor, such that it is placed in issue by virtue of the evidence
presented before the district court.’ ” In re G.G.M., 377 N.C. 29, 2021-NCSC-25, ¶ 22
(quoting In re A.R.A., 373 N.C. 190, 199 (2019)).
¶ 13 “The trial court’s dispositional findings of fact are reviewed under a ‘competent
evidence’ standard.” In re A.J.T., 374 N.C. 504, 508 (2020) (quoting In re K.N.K., 374 IN RE N.C.E. AND N.D.C.
N.C. 50, 57 (2020)). “We are likewise bound by all uncontested dispositional findings.”
In re E.F., 375 N.C. 88, 91 (2020) (citing In re Z.L.W., 372 N.C. 432, 437 (2019)). We
review a trial court’s assessment of a juvenile’s best interests only for abuse of
discretion. In re A.R.A., 373 N.C. at 199. “Under this standard, we defer to the trial
court’s decision unless it is ‘manifestly unsupported by reason or one so arbitrary that
it could not have been the result of a reasoned decision.’ ” In re J.J.B., 374 N.C. 787,
791 (2020) (quoting In re Z.A.M., 374 N.C. 88, 100 (2020)).
¶ 14 As an initial matter, we note the trial court entered separate disposition orders
for Nathan and Nick, with substantially similar, if not identical, findings of fact. In
addressing respondent-mother’s challenges to specific findings of fact, we will quote
from the “Disposition Order for Termination of Parental Rights” in Nathan’s case.
¶ 15 In both of its disposition orders, the trial court made findings of fact correlating
to each of the statutory criteria in N.C.G.S. § 7B-1110(a)(1)–(5). Addressing N.C.G.S.
§ 7B-1110(a)(1) and (2), the trial court noted Nathan’s and Nick’s ages and found the
likelihood of their adoption “extremely high” due to their ages, health, and
personalities. Addressing N.C.G.S. § 7B-1110(a)(3), the trial court found that
termination of parental rights was necessary to accomplish the permanent plan of
adoption. Addressing N.C.G.S. § 7B-1110(a)(4), the trial court found that “no bond”
existed between respondent-mother and either child. Addressing N.C.G.S. § 7B-
1110(a)(5), the trial court found that because neither child was in an adoptive IN RE N.C.E. AND N.D.C.
placement, “there [was] no information on the quality of the relationship between [the
children] and the proposed adoptive parent[s].” As respondent-mother does not
challenge these findings, they are binding on appeal. See In re E.F., 375 N.C. at 91.
A. Sufficiency of findings under N.C.G.S. § 7B-1110(a)(5)
¶ 16 Respondent-mother first argues that the trial court failed to make additional
findings of fact required by N.C.G.S. § 7B-1110(a)(5) to address the quality of the
relationship between the children and the permanent placements proposed by
respondent-mother, specifically the children’s maternal grandmother and maternal
great-grandparents.
¶ 17 Although respondent-mother did not attend the disposition hearing, the
transcript and the trial court’s findings show that the maternal grandmother testified
and offered herself as a permanent placement for the children. However, the record
provides no indication that the maternal great-grandparents were proposed as a
placement option during the termination proceedings. Moreover, while the maternal
grandmother sought to be considered as a permanent placement, a review of the
record reveals no conflict in the evidence regarding the quality of her relationship
with Nathan or Nick. Therefore, the trial court did not err by failing to make written
findings on this issue under N.C.G.S. § 7B-1110(a)(5). See In re A.R.A., 373 N.C. at
199. IN RE N.C.E. AND N.D.C.
B. Accuracy of findings under N.C.G.S. § 7B-1110(a)(6)
¶ 18 Respondent-mother next argues that “the trial court’s findings of fact which
held the maternal great-grandparents and maternal grandmother were not
appropriate placement providers for the children were not supported by . . . competent
evidence.” She further contends that “[t]he competent evidence supports a finding
that the children’s placement with the maternal great grandparents and the
maternal grandmother [is] appropriate.”
¶ 19 Although the availability of a relative placement is not among the specific
dispositional factors set forth in N.C.G.S. § 7B-1110(a)(1)–(5), we have held the trial
court “may treat the availability of a relative placement as a ‘relevant consideration’ ”
under N.C.G.S. § 7B-1110(a)(6). In re S.D.C., 373 N.C. 285, 290 (2020). “[T]he extent
to which it is appropriate to do so in any particular proceeding [is] dependent upon
the extent to which the record contains evidence tending to show whether such a
relative placement is, in fact, available.” Id.
¶ 20 Here, respondent-mother challenges the following findings as unsupported by
the evidence: the trial court had previously denied respondent-mother’s request to
place the children with the maternal great-grandparents at the ninety-day review
hearing on 18 December 2018; the maternal grandmother believed respondent-
mother was a “good mother” and blamed others for the children being in DSS custody; IN RE N.C.E. AND N.D.C.
and the trial court received “scant evidence” about the quality of care the children
would receive if placed with their maternal relatives.
¶ 21 With regard to the finding that the trial court had declined to place the children
with the maternal great-grandparents at the ninety-day review hearing, DSS Social
Worker Dale Corbin testified during the termination hearing about the assessment
conducted with the maternal great-grandparents as a potential placement option. At
the time of the initial kinship assessment on 29 August 2018, the maternal great-
grandparents’ 48-year-old son, who has a “criminal background,” was living in the
home. DSS’s concerns are also reflected in the trial court’s findings in the 30 January
2019 ninety-day review order.2 The maternal great-grandparents made the following
disclosures to Social Worker Corbin at a meeting on 29 November 2018:
[The maternal great-grandmother] stated they could not have the children placed in their home as neither she nor her husband were capable of caring for the children, given [Nathan] being a very active child and needing to be watched constantly. [The maternal great-grandparents] advised they know what would happen if the children were placed with them citing that neither [respondent-mother] nor their maternal grandmother . . . would do anything. [The maternal great-grandmother] stated that neither [the maternal grandmother] nor [respondent-mother] “want the children” and were not going to do what they are supposed to do to get the children back. . . . Further, [the maternal great-grandmother] advised the children would just be left with them and they could not care for them full time. [She] stated she feels better knowing the children are currently
2 The trial court took judicial notice of all orders entered in the underlying juvenile
proceedings. IN RE N.C.E. AND N.D.C.
being cared for and are safe where they were.
The trial court also found that the maternal great-grandmother had contacted Social
Worker Corbin on 3 December 2018 in an attempt to disavow these statements,
explaining that respondent-mother and the maternal grandmother “were very upset
and angry with her and [the maternal great-grandfather] for telling Social Worker
Corbin that they could not care for the children” and claiming that “she and her
husband wanted the children brought to her home to stay.” However, Social Worker
Corbin believed the maternal great-grandparents had been “upfront, honest and not
hesitant in advising of their situation” on 29 November 2018.
¶ 22 Although the ninety-day review order did not expressly reject the maternal
great-grandparents’ request to serve as a placement for Nathan and Nick, the order
maintained the children in DSS custody and directed DSS to continue to arrange for
their placement “in a licensed foster home or . . . any other home or facility approved
by the Court.” Given the order’s findings and Social Worker Corbin’s testimony at the
disposition hearing, one could reasonably infer that the trial court had deliberately
chosen not to place the children with the maternal great-grandparents at the prior
hearing in December 2018. We further conclude that any error in this dispositional
finding is harmless, inasmuch as the maternal great-grandparents were not proposed
as a placement option for the children at the time of the termination hearing. See In
re E.F., 375 N.C. at 94. IN RE N.C.E. AND N.D.C.
¶ 23 The trial court’s findings that the maternal grandmother believed respondent-
mother to be a “good mother” and assigned blame “to everyone except her daughter”
are fully supported by the maternal grandmother’s testimony at the disposition
hearing. Respondent-mother argues the trial court’s findings misconstrue this
testimony, noting the maternal grandmother’s qualification that she did not agree
with the way respondent-mother had been “handling things” and that respondent-
mother is a good mother in “some aspects.” However, the transcript reflects the
maternal grandmother testified that “[w]hen I say she’s a good mother, she loves her
children. She—she was never abusive to them or, you know, anything that would rule
you out as a good mother. She just was a good mother in general.”
¶ 24 As for the maternal grandmother assigning blame to people other than
respondent-mother for the children remaining in DSS custody, the maternal
grandmother testified that the children’s relatives had asked DSS to be a kinship
placement for the children but were refused “because of little things . . . little stuff”
despite her assurance to Social Worker Corbin that “whatever h[e] and DSS needed
us to do we would do it.” The maternal grandmother repeatedly expressed her
frustration that respondent-mother and her family were being held to an unrealistic
standard of perfection in being denied custody of the children. She characterized the
court proceedings as “a mess[,]” “ridiculous[,]”and “unnecessary[,]” and insisted the
children should be with their family rather than in foster care. While acknowledging IN RE N.C.E. AND N.D.C.
she had disapproved of respondent-mother’s past behavior, the maternal
grandmother explained that
her problem—her issue is is that she’s young and some of the things that she wanted to do were just not appropriate for you having two children at the time. Some things that I didn’t agree with. Maybe hanging out a little bit and things like that and I’m having to babysit. Things that can be fixed. Nothing like she was abusive or—or on drugs or anything out of the way like that.
Because the trial court’s findings fairly characterize the maternal grandmother’s
testimony, we overrule respondent-mother’s challenge. See In re A.J.T., 374 N.C. at
508.
¶ 25 Competent evidence also supports the trial court’s findings that it received
“scant” evidence about the quality of care that the maternal grandmother could
provide the children. In contesting these findings, respondent-mother asserts the
trial court previously found the maternal grandmother’s home to be a “perfect”
placement for Nathan in its initial disposition order entered following the children’s
adjudication as neglected and dependent juveniles in October 2018. Having reviewed
the trial court’s 17 October 2018 disposition order we find respondent-mother’s
argument unpersuasive.
¶ 26 The finding cited by respondent-mother states as follows:
32. [The maternal grandmother] testified that she called [DSS] and reported her daughter because . . . [she] was not taking her parenting seriously. . . . [The maternal grandmother] believes [respondent-mother] gets the IN RE N.C.E. AND N.D.C.
seriousness of it now. In the past [the maternal grandmother] has been a placement provider for the children. [Nathan] has always been with her and [maternal grandmother] can handle [Nathan]’s behavioral problems. [The maternal grandmother]’s home is the perfect place for [Nathan] to be placed. [The maternal grandmother] wants both of the children out of foster care and placed with her and/or her mother[, the maternal great-grandmother].
Fairly construed, this finding merely summarizes the maternal grandmother’s
testimony and does not reflect the trial court’s own assessment that her residence is
“perfect” for Nathan. As respondent-mother does not direct our attention to any other
evidence probative of the quality of care the maternal grandmother could provide the
children, we reject respondent-mother’s challenge to the trial court’s findings of
“scant” evidence on the subject. See In re A.J.T., 374 N.C. at 508.
¶ 27 To the extent respondent-mother separately contends there is competent
evidence to support a finding that the maternal grandmother or maternal great-
grandmother would be an appropriate placement for the children, we find no merit to
her contention. “Although the question of the sufficiency of the evidence to support
the findings may be raised on appeal, our appellate courts are bound by the trial
courts’ findings of fact where there is some evidence to support those findings, even
though the evidence might sustain findings to the contrary.” In re Montgomery, 311
N.C. 101, 110–11 (1984) (citation omitted).
¶ 28 The trial court heard no evidence the maternal great-grandmother was willing
or able to provide a permanent home for the children. See In re E.F., 375 N.C. at 94. IN RE N.C.E. AND N.D.C.
Moreover, although the maternal grandmother testified about her own willingness
and ability to care for the children, it was the trial court’s role as fact-finder “to pass
upon the credibility of the witnesses and the weight to be given their testimony and
the reasonable inferences to be drawn therefrom.” In re A.R.A., 373 N.C. at 196
(cleaned up). The trial court expressly found that
It would not be in the best interest of the minor child[ren] to be placed with either [the maternal grandmother] or [the maternal aunt]. The Court was able to observe them during their testimony and hear the tone in which they spoke. They both believe that [respondent-mother] is a good mother in spite of the facts made known in the termination of parental rights proceeding, the fact that [respondent- mother] was not at the hearing, and the fact that her child[ren do] not have a bond with her. Amongst other things, this Court is concerned with their judgment and especially their ability to provide a safe and nurturing environment for [the children], especially at [their] tender age[s].
Respondent-mother’s exception is overruled.
C. The best interests determination under N.C.G.S. § 7B-1110(a)
¶ 29 Finally, respondent-mother claims the trial court abused its discretion by
concluding it was in Nathan’s and Nick’s best interests to terminate her parental
rights. She contends the trial court failed to follow a statutory preference for placing
children with relatives over non-relatives when children are removed from the
parent’s home. Respondent-mother cites N.C.G.S. §§ 7B-900 and 7B-903(a1) under
Article 9, which governs dispositions in abuse, neglect, and dependency proceedings, IN RE N.C.E. AND N.D.C.
as an example of this preference. See In re S.D.C., 373 N.C. at 290 (citing N.C.G.S. §§
7B-903(a1) and 7B-906.1(e)(2) for the proposition that “[a] trial court is required to
consider whether a relative placement is available for a juvenile in deciding the issues
raised in an abuse, neglect, and dependency proceeding”). But cf. id. (“[T]he trial court
is not expressly directed to consider the availability of a relative placement in the
course of deciding a termination of parental rights proceeding . . . .”). Respondent-
mother further notes that custody with a relative or court-approved caretaker was
designated as the children’s concurrent permanent plan throughout the underlying
juvenile proceedings. Because “[t]he trial court did not adequately evaluate the
appropriateness of [the] maternal relatives’ placement” proposed by [the] maternal
grandmother at the termination hearing, respondent-mother argues the court “failed
to make [a] reasoned decision” about the children’s best interests.
¶ 30 It is true that Article 9 of the Juvenile Code—which governs dispositions
entered in ongoing juvenile abuse, neglect, and dependency proceedings—provides
that a juvenile receiving out-of-home care should be placed with a suitable relative
when such a placement is available, “unless the court finds that the placement is
contrary to the best interests of the juvenile.” N.C.G.S. § 7B-903(a1) (2019). However,
“[a] termination proceeding is separate and distinct from an underlying adjudication
proceeding” and is governed by the statutes in Article 11. In re A.S.M.R., 375 N.C.
539, 542 (2020). Article 11’s dispositional statute, N.C.G.S. § 7B-1110, gives no IN RE N.C.E. AND N.D.C.
priority to relative placements, focusing solely upon identifying the best interests of
the child. See N.C.G.S. § 7B-1110(a)–(b). While the availability of an appropriate
relative placement may be a “relevant consideration” under N.C.G.S. § 7B-1110(a)(6),
In re S.D.C., 373 N.C. at 290, it is left to the trial court’s discretion to weigh the
various competing factors in N.C.G.S. § 7B-1110(a) in arriving at its determination
of the child’s best interests. See In re J.J.B., 374 N.C. at 795 (explaining that “the
bond between parent and child is just one of the factors to be considered under
N.C.G.S. § 7B-1110(a), and the trial court is permitted to give greater weight to other
factors” (quoting In re Z.L.W., 372 N.C. at 437)).
¶ 31 The court’s unchallenged findings of fact show DSS had contacted and assessed
fourteen potential relative placements during the course of the underlying
proceedings but found none to be acceptable. As discussed above, the trial court
acknowledged the maternal grandmother’s request that the children be placed with
her but made findings explaining why such a placement would be inappropriate and
contrary to the children’s best interests. While the court “d[id] find value in placing a
child with relatives[,]” the court concluded, based on the evidence before it, that
freeing Nathan and Nick for adoption would afford them “the greatest opportunity to
be nurtured, loved, and cared for in a safe and stable environment” and “to reach [the]
full development of [their] physical, mental, emotional, moral and spiritual faculties.” IN RE N.C.E. AND N.D.C.
¶ 32 Because the trial court made sufficient dispositional findings of fact under
N.C.G.S. § 7B-1110(a)(1)–(5) and provided a reasoned explanation of its weighing of
the statutory factors, we hold that the trial court did not abuse its discretion by
concluding that termination of respondent-mother’s parental rights in Nathan and
Nick was in the children’s best interests. See In re J.J.B., 374 N.C. at 791.
Accordingly, the trial court’s orders are affirmed.
AFFIRMED.