In re B.D.
| Decision Date | 04 September 2018 |
| Docket Number | No. COA18-288,COA18-288 |
| Parties | In the MATTER OF: B.D., C.D. |
| Court | North Carolina Court of Appeals |
Holcomb & Stephenson, LLP, by Deana K. Fleming, for petitioner-appellee Chatham County Department of Social Services.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender J. Lee Gilliam, for respondent-appellant mother.
Womble Bond Dickinson LLP, Raleigh, by Beth Tyner Jones and Rebecca C. Fleishman, for guardian ad litem.
Respondent appeals from the trial court's orders terminating her parental rights to B.D. ("Bailey") and C.D. ("Charlie").1 On appeal, Respondent contends the court erred by concluding termination of her parental rights was in Charlie's best interests. Respondent does not bring forth any appellate argument regarding termination of her parental rights to Bailey. We dismiss in part, and affirm in part.
On 31 May 2016, Chatham County Department of Social Services ("DSS") obtained nonsecure custody of Charlie and filed a juvenile petition alleging him to be a neglected and dependent juvenile.2 The petition alleged the following narrative. On 19 May 2016, Respondent was kicked out of Chatham Recovery. On 27 May 2016, Respondent tested positive for methamphetamine, marijuana, opiates, and cocaine. On 28 May 2016, DSS received a referral, which averred Respondent was in the University of North Carolina Emergency Department for psychiatric evaluation. Although Respondent and her children had been seen on the campus for several hours prior to going into the emergency department, Respondent did not know why she was there.3 While she was in the emergency department, Respondent fell and was unable to sign her name. Respondent tested positive for amphetamines
, benzodiazepines, and methadone. At the time of the filing of the petition, Respondent was still hospitalized.
The petition further alleged the family had an extensive history with Child Protective Services, dating back to 2008 in Alamance, Caswell, and Chatham counties. The history involved issues with domestic violence, improper supervision, injurious environment, substance abuse, sexual abuse, physical abuse, and mental illness.
Following a hearing held on 14 July 2016, the trial court entered an adjudication and disposition order on 22 September 2016. The trial court concluded Charlie was a dependent juvenile and continued Charlie's custody with DSS. The court ordered Respondent to do the following: (1) complete a substance abuse assessment and follow recommendations; (2) submit to random urine and/or hair follicle drug screens as requested by DSS; (3) complete the assessment for Family Drug Treatment Court and follow recommendations; and (4) complete a psychological and parental evaluation and follow recommendations.
The trial court held a permanency planning hearing on 8 December 2016 and entered an order on 9 February 2017. The trial court found Charlie could not be returned to Respondent's custody in the following six months due to: (1) "severe trauma" while living with his parents, including physical abuse, sexual abuse, and exposure to domestic violence and criminal activity; (2) Respondent's failure to protect Charlie; (3) Respondent's failure to provide Charlie with services to address the abuse and neglect; (4) Respondent's history of substance abuse; and (5) following the filing of the juvenile petitions, Respondent tested positive for methamphetamines, marijuana, cocaine, opiates, amphetamines, benzodiazepines, methadone
, and alcohol on "several drug screens[.]"
The court also found Respondent completed a psychological evaluation, which resulted in a recommendation that reunification should not be considered until Respondent acknowledged her substance abuse problem and its impact on her children.4 The trial court relieved DSS of further efforts toward reunification and established the primary permanent plan for Charlie as adoption, with a secondary plan of reunification.
On 12 April 2017, DSS filed a motion to terminate Respondent's parental rights to Charlie, pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (neglect), (3) (failure to support), and (6) (dependency). N.C. Gen. Stat. § 7B-1111(a)(1), (3), (6) (2017).5 The court held termination of parental rights hearings on 13 July 2017 and 6 September 2017.6
DSS called Jennifer Thomas, the social worker assigned to Charlie's case. Thomas believed it was in Charlie's best interest to be adopted.
DSS next called Gerard Tucker, Charlie's guardian ad litem . Tucker first visited Charlie during a visitation with Charlie's foster mom. Following the initial visitation, Tucker met with Charlie on a monthly visit, either at school, at the foster home, or at daycare. Tucker also spoke with Charlie's teachers and therapists.
In September 2016, Tucker first met Respondent during a visitation at a DSS office. Tucker attended another visitation session in October 2016 and spoke with Respondent.
At the time of the September 2017 hearing, Charlie, age 9, was in the hospital. Tucker and Charlie discussed adoption, and Charlie "[wa]s not opposed to adoption, that's for sure." Tucker believed Charlie would need help and therapy before being adopted, but hoped the adoption would be able to happen. Whenever Charlie was "healthy," Charlie was "[a]bsolutely" adoptable.
Respondent testified on her own behalf. Respondent intended to continue therapy and would comply with any other recommendations. She was concerned about Charlie's and Bailey's safety. Were Charlie and Bailey returned to her custody, she would attend "continue on the right track of healing and recovery[.]" She believed reunification to be in Charlie's and Bailey's best interests.
On 5 December 2017, the trial court entered an order terminating Respondent's parental rights to Charlie, pursuant to N.C. Gen. Stat. § 7B-1111 (a)(1) (neglect) and (6) (dependency). The trial court also concluded it was in Charlie's best interests for Respondent's parental rights to be terminated. See N.C. Gen. Stat. § 7B-1110(a) (2017). On 22 December 2017, Respondent filed timely notice of appeal.
"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) (citation omitted). "The trial court is subject to reversal for abuse of discretion only upon a showing ... that the challenged actions are manifestly unsupported by reason." In re J.L.H. , 224 N.C. App. 52, 57, 741 S.E.2d 333, 337 (2012) (quotation marks and citation omitted) (alteration in original).
While Respondent acknowledges this Court reviews the decision to terminate parental rights for abuse of discretion, she argues a 2005 amendment to N.C. Gen. Stat. § 7B-1110(a)"compel[s] this Court to apply a de novo review to the best interests determination[.]"
In 2005, the General Assembly amended N.C. Gen. Stat. § 7B-1110, adding subsections (a)(1) through (a)(6). Act of Sept. 14, 2005, ch. 398, sec. 17, 2005 N.C. Sess. Laws 1455, 1463. Although our legislature mandated the trial court to consider six criteria in making its best interest determination, this does not change the fact the trial court's determination is discretionary. This Court continued to apply the abuse of discretion standard to the best interests analysis since the 2005 amendments went into effect. See In re N.X.A. , ––– N.C. App. ––––, ––––, 803 S.E.2d 244, 248, disc. review denied , ––– N.C. ––––, 807 S.E.2d 148-49 (2017) ; In re A.B. , 245 N.C. App. 35, 41, 781 S.E.2d 685, 689, disc review denied , 369 N.C. 182, 793 S.E.2d 695 (2016) ; In re L.H. , 210 N.C. App. 355, 362, 708 S.E.2d 191, 196 (2011) ; and In re R.B.B. , 187 N.C. App. 639, 648, 654 S.E.2d 514, 521 (2007), disc. review denied , 362 N.C. 235, 659 S.E.2d 738 (2008). We are bound by prior opinions of this Court as to the standard to be applied—abuse of discretion. In re Civil Penalty , 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (citation omitted) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.").
DSS filed a motion to dismiss Respondent's appeal as to termination of her parental rights to Bailey. Respondent filed notice of appeal from the order terminating her parental rights to Bailey. However, Respondent did not present any argument regarding the termination order and abandoned any issues on appeal. N.C. R. App. P. 28(a) (2017). We grant DSS's motion and dismiss Respondent's appeal in regard to her parental rights to Bailey.
"The termination of parental rights statutes provide for a two-stage termination proceeding: an adjudication stage and a disposition stage." In re D.H. , 232 N.C. App. 217, 219, 753 S.E.2d 732, 734 (2014) (citation omitted). "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).
In deciding whether terminating the parent's rights is in the juvenile's best interests, the trial court must consider and make findings about the following criteria, insofar as they are relevant:
Here, the trial court addressed each of the statutory factors set forth in N.C. Gen. Stat. § 7B-1110(a)...
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