An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-196
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
IN THE MATTER OF: Mecklenburg County
Nos. 09 JT 304
10 JT 449
S.H. 12 JT 647
J.H.
S.B.
Minor children
Appeal by respondents from order entered 25 November 2013
by Judge Elizabeth T. Trosch in Mecklenburg County District
Court. Heard in the Court of Appeals 11 June 2014.
Twyla Hollingsworth-Richardson for petitioner-appellee
Mecklenburg County Department of Social Services, Division
of Youth and Family Services.
Ryan McKaig for respondent-appellant mother.
Peter Wood for respondent-appellant father.
Administrative Office of the Courts, by Deana K. Fleming,
Associate Counsel, for guardian ad litem.
DAVIS, Judge.
Respondent-mother D.H and Respondent–father X.B.
(collectively “Respondents”) appeal from an order terminating
-2-
their parental rights to their children “Sam,” “John,” and
“Sean.”1 After careful review, we affirm.
Factual Background
On 7 May 2009, the Mecklenburg County Department of Social
Services, Youth and Family Services (“YFS”) filed a petition
alleging that Sam was a neglected and dependent juvenile. At
the time YFS filed the petition, Respondent-mother was fifteen
years old and in placement herself with YFS. The petition
alleged that Respondent-mother (1) went “AWOL” from her YFS
placement by repeatedly running away on 4 February 2009, 31
March 2009, and 4 April 2009; (2) was taken to Gaston County
Detention Center on 1 May 2009 on a secure custody order; (3)
had failed to attend school; (4) was engaged in a sexual
relationship with a man more than five years older than herself;
and (5) had named two seventeen-year-old males as possible
fathers of Sam. The petition further stated that Sam’s maternal
grandmother was unsuitable for placement and alleged that
Respondent-mother was a “truant, a runaway and is undisciplined
and, therefore, unsuitable for being placed with her child in
the same foster home.” A non-secure custody order was entered
1
The pseudonyms “Sam,” “John,” and “Sean,” are used throughout
this opinion to protect the identity of the children and for
ease of reading. N.C.R. App. P. 3.1(b).
-3-
granting YFS custody of Sam. On 12 June 2009, Sam was
adjudicated neglected and dependent.
On 26 July 2010, YFS filed a petition alleging that John —
Respondents’ second child — was a neglected and dependent
juvenile. John had been born two days prior to the filing of
the petition relating to Sam. The petition alleged that (1)
Respondent-mother was 16 years old and in “YFS’s custody
herself”; (2) Respondent-mother was unable to name the father of
John; (3) there were no family members who were ready, willing,
and able to take care of John and the only place he could live
was with Respondent-mother in her foster home; (4) John was
“neglected because he has been abandoned by his father”; and (5)
John was “dependent because he is in need of placement and
assistance and has no parent, custodian, or guardian willing or
able to provide placement assistance.” YFS obtained nonsecure
custody of John, and on 13 September 2010, he was adjudicated a
dependent juvenile.
In October 2010, Respondent-mother revealed to her school
nurse that (1) Respondent-father was the father of Sam and John;
(2) she remained in a relationship with him; (3) he was violent
towards her; and (4) he was “aware of the location of her
placement with her children.” As a result, Respondent-mother
-4-
and her two children were moved to another foster home. An ex
parte protective order was entered against Respondent-father,
and Respondent-mother was ultimately granted a one-year
restraining order against him.
On 5 January 2011, YFS filed a new petition alleging that
Sam and John were neglected and dependent juveniles and that
Respondent-father “has not cooperated with [Respondent-mother’s]
requests that he participate in paternity testing.” On 16
February 2011, a paternity order was entered establishing
Respondent-father as the father of both Sam and John. On 7 June
2011, Respondent-father was ordered to pay child support.
On 7 October 2012, Respondent-mother gave birth to another
child, Sean, and on 12 October 2012, YFS filed a petition
alleging that Sean was a neglected and dependent juvenile. In
the petition, YFS alleged that (1) Respondent-mother “failed to
make reasonable progress at the Court’s last review hearing . .
. and the father has never made any progress” with regard to
providing for Sam and John; (2) “the Court couldn’t trust
anything the mother said . . . [and] that the mother was no
closer to securing employment, securing housing or being able to
provide a safe home for her children”; (3) Respondent-mother had
violated the court’s directives by maintaining her relationship
-5-
with Respondent-father, which led to her ultimately becoming
pregnant; (4) “based on the mother’s recent decisions, she has
either given up or is giving the court the middle finger”; (5)
Respondent-mother was “moving backwards for six months” with
regard to breaking the cycle of domestic violence; (6)
Respondent-mother “still [did] not have independent housing or
any means of support . . . [and] continue[d] to make poor
decisions in having another child for whom she cannot provide a
safe home”; and (7) Respondent-father failed to provide
“substantial support or consistent care to [Respondent-mother]
during her pregnancy” or “the love, care, and personal contact
that inheres in the parental relationship to this or his other
children.” Sean was adjudicated neglected on 3 December 2012.
Following a review hearing held on 20 February 2013, the
trial court suspended reunification efforts and changed the
permanent plan for the juveniles to adoption. On 17 April 2013,
YFS filed a petition to terminate Respondents’ parental rights,
alleging that grounds for termination existed pursuant to N.C.
Gen. Stat. § 7B-1111(a)(1), (2), (3), and (7). The petition
further alleged that grounds also existed to terminate
Respondent-father’s parental rights pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(5).
-6-
On 25 November 2013, the trial court entered an order
terminating Respondents’ parental rights pursuant to N.C. Gen.
Stat. § 7B-1111(a)(1), (2), and (3). Respondents gave timely
notice of appeal.
Analysis
Respondents’ sole argument on appeal is that the trial
court abused its discretion when it determined that the
termination of Respondents’ parental rights was in the best
interests of the children. We disagree.
At a hearing to terminate parental rights, the trial court
must first determine if a statutory ground for termination
exists. In re E.M., 202 N.C. App. 761, 763-64, 692 S.E.2d 629,
630 (2010). “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 best interests of a child to
have parental rights terminated, the trial court must consider:
(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.
-7-
(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. This statute further requires the trial court to “make
written findings regarding the [criteria] that are relevant.”
Id. The trial court’s determination as to whether termination
of parental rights is in the juvenile’s best interests is
reviewed under an abuse of discretion standard. In re Shermer,
156 N.C. App. 281, 285, 576 S.E.2d 403, 407 (2003).
Here, in support of its conclusion that it was in the
juveniles’ best interests to terminate Respondents’ parental
rights, the trial court made the following pertinent findings of
fact:
1. . . . [Sam] was born on 4 May 2009 in
Mecklenburg County, North Carolina. [John]
was born on 23 July 2010 in Mecklenburg
County, North Carolina. [Sean] was born in
Mecklenburg County, North Carolina on 7
October 2012.
. . . .
50. The juveniles are very bonded to their
mother, especially the older boys, and they
know who she is. The children and the
mother have a reciprocal relationship.
-8-
51. The respondent mother is unable to
demonstrate that she can provide for their
basic needs and for their social and
emotional development. There is no viable
opportunity for the development of the
juveniles with the respondent mother.
52. The juveniles are familiar with
[Respondent-father]. The Court cannot
assess the quality of the relationship
between [Respondent-father] and the children
as he has not presented for any court-
authorized visitation.
. . . .
54. The children are developing a strong
bond with their foster parents who are
committed to adopting the children.
55. It is in the best interests of the
juveniles to have a safe, stable and
permanent home.
56. There are no known appropriate
relatives available to provide permanence
for the juveniles.
Respondents do not challenge any of the above-quoted
findings of fact. Therefore, they are binding on appeal.
Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
I. Respondent-mother
Respondent-mother argues that the trial court abused its
discretion in determining that termination was in the juveniles’
best interests “in light of the fact that she had made
significant progress, expressed a desire to make further
-9-
progress and to be a good mother to the children, and had formed
a strong, loving bond with the children, who, as the trial court
noted, deeply love their mother.” We disagree.
It is the trial “judge’s duty to weigh and consider all
competent evidence, and pass upon the credibility of the
witnesses, the weight to be given their testimony and the
reasonable inferences drawn therefrom.” In re Whisnant, 71 N.C.
App. 439, 441, 322 S.E.2d 434, 435 (1984). “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).
Here, after considering the competent evidence, the trial
court found as fact following the termination hearing that
Respondent-mother could not provide for the juveniles’ social
and emotional development and that the juveniles were bonded
with their foster parents who were committed to adopting them.
The trial court also made findings regarding the bond between
the juveniles and the parents, the likelihood of adoption, and
whether the termination of parental rights would aid in the
accomplishment of a permanent plan for the juveniles. The trial
court also made findings relating to the age of each juvenile.
It is apparent from both the order and the accompanying record
-10-
that the trial court considered each of the statutory criteria
listed in N.C. Gen. Stat. § 7B-1110(a). Thus, the trial court's
conclusion reflects a reasoned decision based upon those
statutory factors. As such, the trial court did not abuse its
discretion in determining that it would be in the best interests
of Sam, John, and Sean to terminate Respondent-mother's parental
rights.
Respondent-mother next contends that the trial court may
have erroneously believed it was required to terminate her
parental rights based on its statement that the court had “no
choice” but to do so. We are not persuaded. The full statement
made by the trial court at the disposition hearing was as
follows:
[Respondent-mother], you, I think, on some
level never, you know, trusted any of the
people that were involved with you and your
children. You’ve been dishonest at various
points throughout this case and you created
a situation that -- it’s just sad and tragic
because I -- I do feel that you have left
the Court with no choice but to find that
the Department has proven grounds to
terminate your parental rights on the ground
of neglect, willfully leaving the children
in foster care for 12 months without having
done anything to alleviate the conditions
that brought them into custody. And -- and
the Department’s certainly proven grounds to
terminate for failure to contribute,
financially, during the six month[s]
-11-
immediately proceeding [sic] the filing of
the petition.
When viewed in context, it is clear that the trial court
was simply expressing its conclusion that Respondent-mother’s
actions had left the trial court with no viable option other
than terminating her parental rights as opposed to the trial
court laboring under a misapprehension of law that it lacked
discretion to decide otherwise. This fact is further supported
by the trial court’s later statement that it was in the “best
interest of each juvenile” to terminate Respondents’ parental
rights. Therefore, this argument is overruled.
II. Respondent-father
We similarly conclude that findings 1, 52, 54, 55, and 56
establish that the trial court did not abuse its discretion in
determining that the termination of Respondent-father’s parental
rights was in the best interests of the children. In his brief,
Respondent-father challenges the following findings of fact made
by the trial court:
38. By his own testimony (the father)
admitted that he has had resources through
his family or through his own employment to
provide for the juveniles, but has failed to
provide his relatives or any support for the
juveniles.
39. [Respondent-father] has willfully
withheld his care and affection in a
-12-
consistent manner from the juveniles for
their entire lives despite knowing that they
were in YFS custody.
. . . .
43. [Respondent-father] has been employed
gainfully since 7 September 2011. He has
provided clothes and shoes to the children
on occasion without the Court’s knowledge.
But despite court orders to pay child
support for the juveniles, he has made no
payments in support of the juveniles.
. . . .
45. [Respondent-father] completed an online
eight-hour domestic violence class in June,
2013. The certificate provide[d] for the
class falsely certifies completion of
certain components of domestic violence
concepts that [Respondent-father] testified
that he was unaware of and was unable to
articulate what the conditions, patterns of
behavior or how [the] course assisted him in
ameliorating domestic violence.
. . . .
47. The respondent parents have failed to
ameliorate the issues of domestic violence
or to acknowledge the impact of domestic
violence on the children.
. . . .
53. [Respondent-father] has failed to
acknowledge the conditions and impact of
domestic violence. He has failed in every
way to place himself in a position to
provide permanence for his children with him
or his family despite the opportunity. He
has left the children in foster care since
their births.
-13-
These findings are not related to the court’s conclusion
that termination of his parental rights was in the children’s
best interests. Instead, these findings relate to the trial
court’s conclusion that Respondent-father neglected his children
pursuant to N.C. Gen. Stat. § 7B-1111(a)(1); willfully left his
children in foster care for 12 months without making reasonable
progress towards correcting those conditions which led to the
removal of the juveniles pursuant to N.C. Gen. Stat. § 7B-
1111(a)(2); and willfully failed to pay a reasonable portion of
the cost of care for the juveniles pursuant to N.C. Gen. Stat. §
7B-1111(a)(3). Respondent-father does not dispute the fact that
“the trial court properly found grounds to terminate his
parental rights.” Therefore, we need not address the challenged
findings as they do not relate to the sole issue he has raised
in this appeal – whether the trial court erred in finding that
the termination of his parental rights was in the best interests
of the children.
Respondent-father cites In Re Matherly, 149 N.C. App. 452,
562 S.E.2d 15 (2002), for the proposition that the trial court
abused its discretion when it failed to properly take into
account his age and maturity, claiming that he is “little more
than a child himself.” We disagree.
-14-
In Matherly, this Court held that a “trial court must make
specific findings of fact showing that a minor parent’s age-
related limitations as to willfulness have been adequately
considered” when determining whether grounds existed pursuant to
N.C. Gen. Stat. § 7B-1111(a)(6) to terminate parental rights.
Id. at 455, 562 S.E.2d at 18. However, as noted above,
Respondent-father does not challenge the trial court’s
determination that grounds existed to terminate his parental
rights. Moreover, we note that the parent in Matherly was 17
years old, and thus a minor, when the petition to terminate her
parental rights was filed. Id. at 454-55, 562 S.E.2d at 17. In
this case, conversely, Respondent-father was 26 years old at the
time of the filing of the petition to terminate his parental
rights. Thus, Matherly is inapplicable.
After careful review of the trial court’s findings and the
entire record, we hold that the trial court’s conclusion that it
was in the best interests of the juveniles to terminate
Respondents’ parental rights was not manifestly unsupported by
reason. Therefore, the trial court did not abuse its
discretion. 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
-15-
in N.C. Gen. Stat. § 7B–1110(a) and that, therefore, trial court
did not abuse its discretion in determining termination of
parent’s parental rights was in best interests of child).
Conclusion
For the reasons stated above, the trial court’s order is
affirmed.
AFFIRMED.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).
In re S.H.
Combined Opinion