In re C.A.

Citation764 S.E.2d 700 (Table)
Decision Date19 August 2014
Docket NumberNo. COA13–1468.,COA13–1468.
CourtCourt of Appeal of North Carolina (US)
PartiesIn the Matter of C.A. and B.A.

764 S.E.2d 700 (Table)

In the Matter of C.A. and B.A.

No. COA13–1468.

Court of Appeals of North Carolina.

Aug. 19, 2014.


Office of the Wake County Attorney, by Roger A. Askew, for Petitioner–Appellee Wake County Human Services.

Levine & Stewart, by James E. Tanner III, for Respondent–Appellant Father.

Robert W. Ewing for Respondent–Appellant Mother.

Ellis & Winters LLP, by James M. Weiss, for Guardian ad Litem.

McGEE, Judge.

Respondent–Father and Respondent–Mother (together, “Respondents”) appeal from an order terminating their parental rights as to the minor children C.A. (“Cathy”) and B.A. (“Beth”) .1 Respondent–Father separately appeals from an order entered 3 June 2013 ceasing reunification efforts with his daughter Cathy. We affirm.

Wake County Human Services (“WCHS”) filed a juvenile petition on 22 May 2012, alleging Cathy and Beth (“the children”) to be abused and neglected juveniles. Cathy, just two months old, had been diagnosed as suffering from a fracture in her foot and multiple fractured ribs, which doctors determined were caused by non-accidental means. WCHS obtained non-secure custody of the children and placed them, pursuant to a safety plan, in the care of Cathy's paternal grandmother (“Cathy's grandmother”).

The parties entered a memorandum of understanding on 25 May 2012, documenting the history of Respondent–Mother's involvement with WCHS, the injuries to Cathy, the services recommended for and agreed to by Respondents, and the services to be provided to the children. The parties also entered into stipulations of fact regarding Cathy's injuries; Respondent–Mother's prior history with WCHS, including that Respondent–Mother relinquished her parental rights to three older children; and Respondent–Mother's history of substance abuse and “instability.” After a hearing on 18 July 2012, and based in part on the stipulated facts, the trial court entered an order on 7 August 2012, adjudicating the children to be neglected juveniles and Cathy to also be an abused juvenile. The trial court continued custody of the children with WCHS and sanctioned their placement with Cathy's grandmother. The trial court directed WCHS to continue to make reasonable efforts to eliminate the need for placement of the children outside of their home, and ordered Respondents to comply with detailed case plans set forth in the order.

WCHS removed the children from the home of Cathy's grandmother in January 2013 and placed them in a licensed foster home. Cathy's grandmother sought to keep Cathy, who was her biological granddaughter, but stated she did not want to keep Beth in her home. Cathy's grandmother was not willing to participate in Beth's recommended in-home mental health therapy, and she also needed monthly respite from Cathy and Beth. Cathy's grandmother filed a motion to intervene and a complaint for custody of Cathy on 27 March 2013.

Respondent–Mother was incarcerated on charges of child abuse of Cathy, larcency, and aiding and abetting larcency. Therefore, Respondent–Mother's ability to work on her case plan was delayed until February 2013. Shortly after starting work on her case plan, Respondent–Mother began missing parenting classes and failed a drug screen for marijuana. The failed drug screen constituted a violation of Respondent–Mother's conditions of probation, and she was incarcerated for twenty-four hours on 15 March 2013.

Respondent–Father did not understand why he had to participate in services ordered by the trial court, and indicated that he wanted Cathy's grandmother to be Cathy's caretaker. Respondent–Father did not consistently visit with Cathy following Cathy's removal from her grandmother's home, and he also missed an appointment for a substance abuse evaluation. Respondent–Father moved into his girlfriend's home, and he admitted the girlfriend's home was not suitable for Cathy.

Due to Respondents' inability to make progress on their case plans, the trial court entered an order on 3 June 2013 ceasing reunification efforts and setting the permanent plan for the children as adoption. That same day, the trial court entered an order denying Cathy's grandmother's motion to intervene. Respondent–Father filed notice of intent to preserve his right to appeal from the order ceasing reunification efforts.

WCHS filed a motion to terminate Respondent–Father's parental rights as to Cathy, and Respondent–Mother's parental rights as to both Cathy and Beth on 9 July 2013. WCHS alleged grounds to terminate Respondent–Mother's parental rights based on neglect, failure to make reasonable progress to correct the conditions that led to the removal of the children from her care, and dependency. SeeN.C. Gen.Stat. § 7B–1111(a)(1), (2), (6) (2013). WCHS alleged grounds to terminate Respondent–Father's parental rights as to Cathy based on neglect, failure to legitimate the child, and failure to make reasonable progress to correct the conditions that led to the removal of Cathy from his care. SeeN.C. Gen.Stat. § 7B–1111(a)(1), (2), (5) (2013).

After a hearing on 10 September 2013, the trial court entered an order on 17 October 2013 terminating Respondents' parental rights. The trial court concluded that: (1) grounds existed to terminate Respondent–Mother's parental rights under N.C. Gen.Stat. § 7B–1111(a)(1), (2) and (6) ; (2) that grounds existed to terminate Respondent–Father's parental rights under N.C. Gen.Stat. § 7B–1111(a)(1) and (2) ; and (3) that termination of Respondents' parental rights was in the children's best interests. Respondents filed timely notices of appeal from the trial court's termination order.

I.

We first address Respondent–Father's argument that the trial court abused its discretion when it set adoption as the permanent plan for the children in its 3 June 2013 order that also ceased reunification efforts. Respondent–Father contends the trial court should have awarded custody or guardianship of Cathy to Cathy's grandmother. We find no abuse of discretion in the trial court's decision.

In setting a permanent plan for children, the trial court's goal is to “develop a plan to achieve a safe, permanent home for the juvenile within a reasonable period of time.” N.C. Gen.Stat. § 7B–907(a) (2011).2 To accomplish this, the trial court may,

appoint a guardian of the person for the juvenile pursuant to G.S. 7B–600 or make any disposition authorized by G.S. 7B–903 including the authority to place the child in the custody of either parent or any relative found by the court to be suitable and found by the court to be in the best interest of the juvenile.

N.C. Gen.Stat. § 7B–907(c) (2011). N.C. Gen.Stat. § 7B–903 prioritizes placements of juveniles with a family member:



In placing a juvenile in out-of-home care under this section, the court shall first consider whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home. If the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order placement of the juvenile with the relative unless the court finds that the placement is contrary to the best interests of the juvenile.

N.C. Gen.Stat. § 7B–903(a)(2)(c) (2013). We review a trial court's determination regarding the best interests of a child for an abuse of discretion. In re Pittman,149 N.C.App. 756, 766, 561 S.E.2d 560, 567,appeal dismissed and disc. review denied,356 N.C. 163, 568 S.E.2d 608, 609 (2002), cert. denied sub nom. Harris–Pittman v. Nash County Dep't of Soc. Servs.,538 U.S. 982, 123 S.Ct. 1799, 155 L.Ed.2d 673 (2003). An abuse of discretion occurs when the trial court's challenged actions are “manifestly unsupported by reason.” 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).



[W]hen a trial judge sits as both judge and juror, as he or she does in a non-jury proceeding, it is that 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 to be drawn therefrom[.]

In re Whisnant,71 N.C.App. 439, 441, 322 S.E.2d 434, 435 (1984) (quotation marks omitted). This Court will not substitute its judgment on the weight of the evidence for that of the trial court.

The trial court granted custody of Cathy and Beth to WCHS and sanctioned the placement of the children with Cathy's grandmother, but the children were removed from the home of Cathy's grandmother in January 2013 and placed in a licensed foster home. [R p. 78 FOF# 8]In an order from a placement review hearing held 3 April 2013, the trial court sanctioned the children's placement in the foster home and made several findings of fact as to why Cathy's placement with her grandmother was not in Cathy's best interests:

Although [Cathy's grandmother] is able and...

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