In re M.S.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-348
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
IN THE MATTER OF:
Forsyth County
No. 11 JT 216
M.S.

Appeal by respondent-father from order entered 30 December

2013 by Judge Denise S. Hartsfield in Forsyth County District

Court. Heard in the Court of Appeals 22 July 2014.

Theresa A. Boucher for petitioner-appellee.

Womble Carlyle Sandridge & Rice, LLP, by Murray C. Greason,
III, for guardian ad litem.

Mark Hayes for respondent-appellant.

ERVIN, Judge.

Respondent-Father Johnny S. appeals from an order

terminating his parental rights in his son, M.S.1 On appeal,

Respondent-Father contends that the trial court erred by

allowing the Forsyth County Department of Social Services to

cease attempting to reunify Respondent-Father with Marvin on the

grounds that the trial court failed to make required findings of
1
M.S. will be referred to throughout the remainder of this
opinion as “Marvin,” a pseudonym used for ease of reading and to
protect the juvenile’s privacy.
 -2-
fact and that the trial court erred by terminating Respondent-

Father’s parental rights in Marvin without making findings of

fact concerning the likelihood that Marvin would be adopted.

After careful consideration of Respondent-Father’s challenges to

the trial court’s order in light of the record and the

applicable law, we conclude that the trial court’s order should

be affirmed.

I. Factual Background

Marvin was born in September 2000. After the death of his

mother in June 2011, Marvin resided with his half-brother’s

paternal aunt. On 25 August 2011, DSS obtained non-secure

custody of Marvin and filed a petition alleging that Marvin was

a neglected and dependent juvenile based, in part, on

allegations that Respondent-Father’s whereabouts were unknown,

that Respondent-Father had an extensive history of engaging in

criminal activity, and that DSS had received reports that

Respondent-Father had engaged in substance abuse and acts of

domestic violence and that he had mistreated Marvin. In

addition to noting Marvin’s struggles with grief, attention

deficit and hyperactivity disorder, and educational

difficulties, DSS also alleged that Marvin’s caretaker had been

unable to enroll him in school.
 -3-
On 4 November 2011, Marvin was adjudicated a neglected and

dependent juvenile. Although Respondent-Father attended the

hearing with his counsel, he “stood mute” when given an

opportunity to address the allegations advanced in the petition.

In its order, the court found that Respondent-Father had called

DSS on 23 August 2011 while indicating that he did not have a

phone number. Respondent-Father told DSS that he wanted Marvin

to live with him at his mother’s residence in Newport, North

Carolina, and scheduled a meeting with a social worker for 24

August 2011. Subsequently, however, Respondent-Father

rescheduled the 24 August 2011 meeting. Aside from the fact

that Respondent-Father had no home address, his mother told DSS

that he had not resided in Newport for six months.

In its dispositional order, the court ordered Respondent-

Father to maintain contact with DSS and keep DSS updated

concerning the location of his residence and his current contact

information. In light of his assertion that he wished to be

reunited with Marvin, Respondent-Father was ordered to complete

substance abuse, mental health, and parenting assessments and to

comply with any resulting recommendations; to submit to random

drug testing; and to maintain a safe and stable residence.

Respondent-Father did not attend the next review hearing,

which was held on 13 January 2012. In an order entered 6
 -4-
February 2012, the court found that Respondent-Father had signed

a case plan on 20 December 2011 and requested that a home study

be performed concerning his mother’s Newport residence. A

subsequent home study revealed that Respondent-Father’s mother

could not provide a permanent placement for Marvin. Similarly,

a home study of the residence of Respondent-Father’s sister

established that, due to space limitations and an inability to

supervise the child, her residence was not suitable for Marvin

either.

In a review order entered 4 May 2012, the court found that

Respondent-Father had maintained only “limited contact” with DSS

and that he had been charged with robbery with a dangerous

weapon and assault with a deadly weapon on 3 March 2012. In

addition, Respondent-Father had a pending misdemeanor assault

charge in Carteret County.

Although a permanency planning hearing had been scheduled

for 6 July 2012, that proceeding was continued until 3 August

2012 at the request of Respondent-Father’s counsel. In a 27

August 2012 permanency planning order, the trial court found

that Respondent-Father had failed to contact DSS following his

release from incarceration on 22 April 2012 and that he had not

responded to letters mailed to the address that he had

previously provided to DSS. In addition, the trial court found
 -5-
that Respondent-Father had not made any progress in satisfying

the requirements of his case plan, inquired about Marvin’s well-

being, or availed himself of the opportunity to communicate with

Marvin by mail as had been previously authorized. As a result,

the trial court established a permanent plan of adoption for

Marvin and relieved DSS of any responsibility for making further

efforts to reunify Marvin with Respondent-Father. Despite this

change, the trial court ordered DSS to “provide assistance to

[Respondent-Father] to locate and obtain the court ordered

services upon his specific request.”

On 3 October 2012, DSS filed a petition seeking the

termination of Respondent-Father’s parental rights in Marvin.

After holding a hearing concerning the issues raised by the

termination petition on 4 February 2013, continued from 7

January 2013 in order to have Respondent-Father transported from

jail, the trial court entered an order terminating Respondent-

Father’s parental rights in Marvin on 13 February 2013. As a

result of the fact that he was incarcerated and did not, for

that reason, receive notice of the hearing concerning the

termination petition, Respondent-Father filed a motion to have

the termination order set aside on 10 September 2013. With the

consent of the parties, the trial court entered an order

granting Respondent-Father’s motion on 13 September 2013 and
 -6-
held a new hearing to consider the issues raised by the

termination petition on 2 December 2013 and 6 December 2013.

On 30 December 2013, the trial court entered an order

terminating Respondent-Father’s parental rights in Marvin.

According to the trial court’s findings of fact, Respondent-

Father had made no progress in satisfying the requirements of

his case plan during the 27 months that Marvin had been in

foster care. In addition, the trial court found that

Respondent-Father had not obtained substance abuse, mental

health, domestic violence, and parenting capacity assessments or

submitted to random drug testing. Moreover, the trial court

found that Respondent-Father had failed to maintain contact with

DSS, obtain and maintain appropriate housing, demonstrate an

ability to provide for Marvin’s basic needs, or send “any cards,

gifts or letters to his son[.]” Finally, the trial court found

that Respondent-Father was on probation, that his probation

officer had filed a violation report against Respondent-Father,

and that new criminal charges were pending against Respondent-

Father. Based on these findings of fact, the trial court

determined that Respondent-Father’s parental rights in Marvin

were subject to termination for neglect as authorized by N.C.

Gen. Stat. § 7B-1111(a)(1) and for willfully leaving Marvin in

foster care for more than twelve months without making
 -7-
reasonable progress toward correcting the conditions that led to

Marvin’s removal from the home as authorized by N.C. Gen. Stat.

§ 7B-1111(a)(2), and that Marvin’s best interests would be

served by the termination of Respondent-Father’s parental

rights. Respondent-Father noted an appeal to this Court from

the trial court’s order.

II. Cessation of Reunification Efforts Order

In the first argument advanced in his brief, Respondent-

Father contends that the trial court erred by authorizing the

cessation of efforts to reunify him with Marvin. More

specifically, Respondent-Father argues that the order in which

the trial court terminated DSS’s obligation to attempt to

reunify Respondent-Father with Marvin failed to contain findings

of fact addressing the issue of whether further efforts at

reunification would be futile or contrary to Marvin’s interest

in obtaining a safe, permanent home within a reasonable period

of time as required by N.C. Gen. Stat. § 7B-507(b)(1). We

decline, however, to consider the merits of Respondent-Father’s

challenge to the trial court’s order authorizing the cessation

of efforts to reunify him with Marvin.

As Respondent-Father notes, an appeal may be taken from an

order authorizing the cessation of efforts to reunify a juvenile

with his or her parents “together with an appeal of the
 -8-
termination of parental rights order[.]” N.C. Gen. Stat. § 7B-

1001(a)(5)(a). In view of the fact that he failed to designate

the order authorizing DSS to refrain from making further efforts

to reunify Respondent-Father with Marvin in his written notice

of appeal, see N.C.R. App. P. 3.1(a); N.C. Gen. Stat. § 7B-

1001(b), Respondent-Father has requested this Court, in the

exercise of its discretion, to issue a writ of certiorari

authorizing review of the trial court’s order authorizing the

cessation of any efforts to reunify Respondent-Father and

Marvin. As a result of the fact that the record contains the

order which Respondent-Father wishes to challenge and the fact

that Respondent-Father has obtained authorization to amend the

record on appeal to include a reference to his challenge to the

order terminating DSS’s responsibility for engaging in further

reunification efforts in the list of issues that he proposes to

raise on appeal, Respondent-Father asserts that “[a]ll of the[]

requirements” necessary to preserve his right to appeal the

order authorizing the cessation of further efforts to reunify

Respondent-Father and Marvin have been satisfied except for his

failure to file a separate notice of appeal from the order in

question as required by N.C. Gen. Stat. § 7B-1001(b).
 -9-
At the time that the trial court authorized the cessation

of efforts to reunify Respondent-Father and Marvin,2 N.C. Gen.

Stat. § 7B-507(c) provided that, “[a]t any hearing at which the

court orders that reunification efforts shall cease, the

affected parent . . . may give notice to preserve the right to

appeal that order in accordance with [N.C. Gen. Stat. §] 7B-

1001.” N.C. Gen. Stat. § 7B-507(c) (2011). According to N.C.

Gen. Stat. § 7B-1001 as it existed at that time, a parent who

noted an appeal from an order terminating his parental rights

could also appeal “[a]n order entered under [N.C. Gen. Stat. §]

7B-507(c) with rights to appeal properly preserved as provided

in that subsection[.]” N.C. Gen. Stat. § 7B-1001(a)(5) (2011).

As a result, in order to properly note an appeal from an order

authorizing the cessation of reunification efforts, the parent

must have “properly preserved [the right of appeal] as provided

in [N.C. Gen. Stat. § 7B-507(c)]” by giving “notice to preserve

the right to appeal that order” at the “hearing at which the

court orders that reunification efforts shall cease[.]”3 N.C.

2
The General Assembly amended both N.C. Gen. Stat. § 7B-
507(c) and N.C. Gen. Stat. § 7B-1001 in 2013, see 2013 N.C.
Sess. Laws ch. 129, §§ 15, 31, with the amended versions of
these statutory provisions applicable “to actions filed or
pending on or after” 1 October 2013. 2013 N.C. Sess. Laws ch.
129, § 41.
3
According to the amended version of N.C. Gen. Stat. § 7B-
1001(b), a parent wishing to appeal from an order authorizing
the cessation of reunification efforts must file written “notice
 -10-
Gen. Stat. § 7B-507(c); N.C. Gen. Stat. § 7B-1001(a)(5) (2011).

“If parents fail to comply with any step of the preservation

process, they have waived appellate review.” In re L.M.T., 367

N.C. 165, 182-83, 752 S.E.2d 453, 464 (2013) (Beasley, J.,

concurring) (citing In re S.C.R., 198 N.C. App. 525, 531, 679

S.E.2d 905, 908-09, appeal dismissed, 363 N.C. 654, 686 S.E.2d

676 (2009)). Aside from his failure to acknowledge that he was

required to “give notice to preserve the right to appeal” at the

hearing at which the cessation of efforts to reunify him with

Marvin was authorized, Respondent-Father has failed to provide

this Court with a transcript of the 2 August 2012 permanency

planning hearing, a fact that precludes us from determining

whether he provided the requisite notice of his intent to appeal

the order authorizing the cessation of efforts to reunify him

with Marvin at that proceeding.

As a general proposition, “[t]he writ of certiorari may be

issued in appropriate circumstances . . . to permit review of

the judgments and orders of trial tribunals when the right to

to preserve the right to appeal . . . within 30 days after entry
and service of the order[.]” 2013 N.C. Sess. Laws ch. 129, §
31. As a result of the fact that the General Assembly had not
enacted the amended version of N.C. Gen. Stat. § 7B-1001(b) as
of the date upon which the trial court authorized the cessation
of further efforts to reunify Respondent-Father and Marvin, the
written notice requirement contained in the current version of
N.C. Gen. Stat. § 7B-1001(b) cannot be deemed applicable to
Respondent-Father.
 -11-
prosecute an appeal has been lost by failure to take timely

action[.]” N.C.R. App. P. 21(a)(1). The “appropriate

circumstances” needed to support the issuance of a writ of

certiorari are, ordinarily, facts demonstrating that “the right

of appeal has been lost through no fault of the petitioner” or

“by reason of excusable neglect[.]” Johnson v. Taylor, 257 N.C.

740, 743-44, 127 S.E.2d 533, 535 (1962) (quotation marks

omitted). A careful review of the record provides no

explanation for either Respondent-Father’s failure to list the

order authorizing the cessation of efforts to reunify him with

Marvin in his notice of appeal or for his failure to demonstrate

that he had properly preserved his right to appeal that order as

required by N.C. Gen. Stat. § 7B-507(c) (2011). Under that set

of circumstances, we are not inclined to exercise our discretion

and grant the requested writ of certiorari in order to reach the

merits of Respondent-Father’s challenge to the order authorizing

the cessation of reunification efforts. As a result,

Respondent-Father’s petition for the issuance of a writ of

certiorari should be, and hereby is, denied, a decision that

obviates the necessity for us to consider the merits of his

challenge to the trial court’s decision to authorize termination

of the reunification process.4

4
In the event that we were to reach the merits of
 -12-
III. Adequacy of Dispositional Findings

In his sole challenge to the trial court’s termination

order, Respondent-Father contends that the trial court erred by

terminating his parental rights without making findings of fact

concerning the likelihood that Marvin would be adopted. More

specifically, after noting that the likelihood that the juvenile

will be adopted is one of the factors that a trial court must

consider at the dispositional phase of a termination proceeding,

N.C. Gen. Stat. § 7B-1110(a)(2), Respondent-Father contends that

he is entitled to relief from the trial court’s dispositional

decision on the grounds that the trial court failed to make

Respondent-Father’s challenge to the trial court’s order
authorizing the cessation of efforts to reunify Respondent-
Father and Marvin, we would have no hesitation in concluding
that the findings of fact contained in that order adequately
establish that further efforts to reunify Respondent-Father with
Marvin would be “futile” and “inconsistent with [Marvin’s] . . .
need for a safe, permanent home within a reasonable period of
time.” N.C. Gen. Stat. § 7B-507(b). In re L.M.T., 367 N.C. at
165-66, 752 S.E.2d at 454 (stating that the findings in an order
such as the one at issue here “need not recite the statutory
language verbatim” and are sufficient in the event that they
“address the substance of the statutory requirements”). The
trial court’s findings that Respondent-Father had failed to
contact DSS upon his release from incarceration, failed to make
any progress in satisfying the requirements of his case plan,
failed to inquire about or make any attempt to communicate with
Marvin by letter, and lacked the ability to provide a home for
Marvin clearly demonstrate that further reunification efforts
would be an exercise in futility and inconsistent with Marvin’s
interest in obtaining a safe, permanent home within a reasonable
period of time.
 -13-
findings of fact addressing the adoptability issue. We do not

find Respondent-Father’s argument persuasive.

After a trial court has found the existence of one or more

of the grounds for termination of parental rights specified in

N.C. Gen. Stat. § 7B-1111(a), it must “determine whether

terminating the parent’s rights is in the juvenile’s best

interest.” N.C. Gen. Stat. § 7B-1110(a). In making its

dispositional decision,

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.

N.C. Gen. Stat. § 7B-1110(a). Although N.C. Gen. Stat. § 7B-

1110(a) “requires the trial court to ‘consider’ all six of the

listed factors,” the relevant statutory language, instead of
 -14-
requiring “written findings with respect to all six factors,”

simply requires the trial court to make “written findings . . .

concerning only those factors ‘that are relevant.’” In re D.H.,

__ N.C. App. __, __, 753 S.E.2d 732, 735 (2014) (citing In re

J.L.H., __ N.C. App. __, __, 741 S.E.2d 333, 338 (2012)). In

order for a factor to be deemed “relevant” for purposes of the

findings requirement set out in N.C. Gen. Stat. § 7B-1110(a),

there must be some “conflicting evidence concerning” the factor,

such that it is “placed in issue by virtue of the evidence

presented before the trial court[.]” Id. at __ n.3, 753 S.E.2d

at 735 n.3. “We review the trial court’s determination that a

termination of parental rights is in the best interest of the

juvenile for an abuse of discretion.” In re S.R., 207 N.C. App.

102, 110, 698 S.E.2d 535, 541, disc. review denied, 364 N.C.

620, 705 S.E.2d 371 (2010).

The trial court clearly “considered” the likelihood of

Marvin’s adoption in making its dispositional decision as

required by N.C. Gen. Stat. § 7B-1110(a)(2). After hearing

testimony from Marvin, his social workers, and his prospective

adoptive parent, the trial court orally opined that “[t]he

likelihood of adoption of the juvenile is pretty good” and

stated that “the bottom line is that, I think, that [the

prospective adoptive parent] is, or can be, in a position to be
 -15-
an adoptive home placement. And she has clearly said that she

loves [Marvin] . . . . So the likelihood, I think, is great.”

In its written order, the trial court found as fact that:

23. [Marvin] is 13 years old. He is
currently placed in a therapeutic
foster home. He desires to be adopted
by his cousin [], but if that is not
possible he would like to be adopted by
another family.

. . . .

25. [Marvin] . . . was hospitalized in the
Brenner’s Children’s Hospital
psychiatric unit, then placed in a
therapeutic foster home, hospitalized
for a second time at Brenner’s
Children’s Hospital, transferred to
Central Regional Hospital in Raleigh
and then admitted to a psychiatric
residential treatment facility (PRTF)
in Charlotte on June 1, 2012. He was
discharged into a therapeutic foster
home in May 2013 and is transitioning
into the home of his cousin[.]

. . . .

31. [Marvin’s cousin] has expressed her
desire to adopt [Marvin]. [The
prospective adoptive parent] is
[Marvin’s] maternal cousin. She has
known him all of his life. She loves
[Marvin] and maintained contact with
him throughout the time he has been in
DSS custody. [Marvin] has expressed
his desire to be adopted by [his
cousin] and become a part of her
family. While on visits to her home,
[Marvin] continues to have contact with
his adult siblings.
 -16-
32. The permanent plan for [Marvin] is
Adoption[.]

Respondent-Father has not challenged these findings of fact,

which thoroughly assess the relevant issues bearing upon the

adoptability issue as required by N.C. Gen. Stat. § 7B-

1110(a)(2), as lacking in adequate evidentiary support.

Aside from the fact that the trial court’s findings clearly

address the factors relevant to a determination of Marvin’s

adoptability and indicate that he is likely to be adopted by his

cousin, a careful review of the hearing transcript has satisfied

us that the record does not contain “conflicting evidence”

concerning the likelihood that Marvin will be adopted in the

event that Respondent-Father’s parental rights are terminated.

In re D.H., __ N.C. App. at __ n.3, 753 S.E.2d at 735 n.3.

Macon Baird, a social worker, testified that Marvin’s permanent

plan was adoption; that DSS had identified Marvin’s cousin as “a

prospective adoptive family for [Marvin;]” that Marvin’s cousin

had visited him regularly since November 2012; and that Marvin

was “[e]xcited” to join her family. Similarly, David Byrd,

another social worker, explained that Marvin was currently

living in a licensed foster home because, “[o]nce [he] was

released from Alexander Youth Network, it was a determination

then from his treatment team that he be stepped down to

therapeutic foster care to address his mental health needs, and
 -17-
then also to work on his relationship with [his cousin].”

Marvin’s cousin was awaiting approval as an adoptive placement,

a process which required a pre-placement assessment. Even so,

DSS had already conducted a home study of Marvin’s cousin’s

residence and was in the process of having a pre-placement

assessment, which Mr. Byrd described as “an enhanced version of

a home study[,]” performed. Having observed Marvin’s weekend

visitations with his cousin, Mr. Byrd had no “concerns with

[Marvin] visiting or staying in [his cousin’s] home[.]”

Marvin’s cousin expressed her desire to adopt Marvin, testifying

that “I would love him to come and live within my home and be a

part of our family.” Asked to describe her relationship with

Marvin, his cousin replied, “He’s just like my [three] kids. .

. . He’s just a natural fit there.” Finally, Marvin testified

that, while he hoped to be adopted by his cousin, he was also

“open to being adopted by another family[.]” As a result, the

undisputed record establishes that Marvin’s cousin wishes to

adopt him, that she has an established relationship with Marvin,

that she believes that Marvin will fit in well with the other

members of her family, and that the steps necessary for the

adoption to be effectuated are well underway.

In attempting to persuade us that the trial court was

required to make written findings addressing the adoptability
 -18-
issue as required by N.C. Gen. Stat. § 7B-1110(a)(2),

Respondent-Father directs our attention to evidence tending to

show that Marvin “had significant emotional and behavioral

issues” that had led to his placement in a residential treatment

facility. Despite the fact that the record does contain

evidence concerning the nature and extent of the emotional and

behavioral issues that confront Marvin, the trial court did not

hear any evidence tending to show that the existence of these

concerns reduced the likelihood that Marvin’s cousin would adopt

him. Although Respondent-Father suggests that Marvin’s cousin

“stated that she would need some kind of outside assistance if

she adopted [Marvin,]” the testimony to which Respondent-Father

directs our attention in support of this argument contradicts

Respondent-Father’s assertion:

Q. You’re willing to do what’s necessary to
get [Marvin] what he needs?

[Marvin’s cousin]. Yes.

. . . .

Q. Been through it before?

A. Yes, I have. I’ve got three kids and
nieces and nephews. I know how they grow.

Q. And you’ve known [Marvin] before all
this happened?

A. Yes.

Q. You were attached to him?
 -19-

A. Yes.

Q. Would you take him into your home if you
weren’t going to receive money?

Q. Yes.

. . . .

Q. If there wasn’t assistance from DSS, or
the government, or somebody else, you would
still take [Marvin] into your home?

A. Yes.

Q. Would that create a financial hardship
for you?

A. I have a very good extended family, and
we would pull together and make it work.

Finally, the record provides us with no reason to believe that

the results of the pre-placement assessment would be adverse to

the proposed adoption. Thus, given the absence of any

indication in the record developed at the termination hearing

that Marvin’s cousin would be unwilling or unable to adopt

Marvin, the adoptability was not in genuine dispute before the

trial court.

As a result, we conclude that the trial court properly

considered the likelihood that Marvin would be adopted as

required by N.C. Gen. Stat. § 7B-1110(a)(2) in the course of

determining Marvin’s best interests. In addition, given that

the likelihood that Marvin’s cousin would be willing and able to
 -20-
adopt him was not “placed in issue by virtue of the evidence

presented before the trial court[,]” the adoptability issue was

not “raised as a relevant factor in this case.” In re D.H., __

N.C. App. at __ n.3, 753 S.E.2d at 735 & n.3. For that reason,

even though the termination order does, in fact, adequately

address the adoptability issue, the trial court was not required

to make written findings concerning this factor. Id. (stating

that, “in the case sub judice, though the ages of the children

were properly ‘considered,’ respondent does not point to any

evidence indicating that the age of any child was placed in

issue such that this factor was ‘relevant’”). Therefore,

Respondent-Father is not entitled to relief from the trial

court’s termination order based upon this contention.

IV. Conclusion

Thus, for the reasons set forth above, Respondent-Father is

not entitled to relief from the trial court’s order on the basis

of either of the arguments advanced in his brief. As a result,

the trial court’s order should be, and hereby is, affirmed.

AFFIRMED.

Judges McGEE and STEELMAN concur.

Report per Rule 30(e).