In re H.N.H.

• Citation: 824 S.E.2d 211 (Table)
• Decision Date: 05 March 2019
• Docket Number: No. COA18-365,COA18-365
• Court: Court of Appeal of North Carolina (US)
• Parties: In the MATTER OF: H.N.H. & H.L.H.

824 S.E.2d 211 (Table)

In the MATTER OF: H.N.H. & H.L.H.

No. COA18-365

Court of Appeals of North Carolina.

Filed: March 5, 2019

Twyla Hollingsworth-Richardson and Sharon Correll for Mecklenburg County Department of Social Services, Petitioner-Appellee.

Anné C. Wright for Respondent-Appellant Mother.

Cranfill Sumner & Hartzog LLP, by Katherine Barber-Jones, for Guardian ad Litem.

McGEE, Chief Judge.

Respondent-Mother ("Respondent") appeals from order terminating her parental rights to the minor children H.N.H. and H.L.H. (together, "the children"). We affirm in part and remand in part.

I. Background

The Mecklenburg County Department of Social Services ("DSS") obtained non-secure custody of two-year-old H.N.H. and one-year-old H.L.H. on 21 January 2015. DSS filed a petition alleging the children were abused, neglected, and dependent juveniles. The petition alleged that DSS received a Child Protective Services ("CPS") referral on 20 January 2015 after H.N.H. presented at the Presbyterian Hospital Emergency Department with a "spiral fracture

" of her left humerus. She also had bruises covering her back "from her neck to her buttocks." A DSS social worker responded to the hospital and observed a faint bruise on the left side of H.N.H.’s face, bruising on her back, and observed her left arm in a cast. Respondent admitted to "yanking" H.N.H. by the arm on 19 January 2015, but H.N.H.’s treating physician advised that a spiral fracture was not consistent with Respondent’s explanation. Respondent’s husband, who was not H.N.H.’s father, admitted to causing the bruising on H.N.H.’s back by spanking her with a belt two weeks earlier, but he was unaware of how she received the bruise on her face.

The petition further alleged Respondent had a history with CPS dating back to 2012. The history involved allegations of substance abuse, mental health issues, improper care, and physical abuse.

Following hearings on 27 May 2015, 31 August 2015, and 2 September 2015, the trial court entered an order on 13 November 2015 adjudicating H.N.H. to be an abused, neglected, and dependent juvenile, and H.L.H. to be a neglected and dependent juvenile.¹ In a separate dispositional order entered 14 December 2015, the trial court continued custody of the children with DSS and established a primary permanent plan of reunification, with a secondary plan of guardianship or custody with a relative or other suitable person. The trial court also ordered Respondent to comply with an Out-of-Home Family Services Agreement with DSS, which included the following requirements: complete an assessment by Families in Recovery Together Stay Together ("FIRST") and comply with all recommendations; complete domestic violence classes; demonstrate satisfactory parenting skills; manage mental health issues; complete a substance abuse assessment and comply with all recommendations; maintain income sufficient for the children’s needs; maintain appropriate and stable housing; and maintain weekly contact with DSS.

In the following months, the trial court conducted several permanency planning hearings. Pursuant to a hearing held 4 May 2016, the trial court entered an order on 25 May 2016 changing the primary permanent plan to adoption, with a secondary plan of reunification. The trial court found that, among other things, Respondent was not making adequate progress on her case plan because she did not have full-time employment and her substance abuse issues remained unresolved.

After a hearing on 1 November 2016, the trial court entered an order on 4 November 2016 ceasing reunification efforts. The trial court found Respondent was acting inconsistently with the health and safety of the children and that she was not making adequate progress on her case plan because she had been ordered to complete an inpatient substance abuse treatment program at the jail following positive drug tests. The trial court maintained the primary permanent plan as adoption, changed the secondary plan to guardianship or custody with a relative or other suitable person, and ordered DSS to file a petition to terminate Respondent’s parental rights within sixty days.

DSS filed a petition on 28 December 2016 to terminate Respondent’s parental rights on the grounds of (1) neglect, (2) willfully leaving the children in foster care for more than twelve months without showing reasonable progress in correcting the conditions that led to their removal, (3) willfully failing to pay a reasonable portion of the cost of the children’s care, and (4) dependency. See N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (6) (2017). The termination proceedings were held on 24 May 2017, 5 June 2017, and 28 June 2017. The trial court entered an order on 24 January 2018 adjudicating the existence of all of the grounds alleged in DSS’s petition. The trial court concluded it was in the best interests of H.N.H. and H.L.H. for Respondent’s parental rights to be terminated and entered an order terminating Respondent’s parental rights as to the children.² Respondent appeals.

II. Analysis

Respondent argues on appeal that the trial court erred by determining that termination of her parental rights was in the children’s best interests.³ Specifically, she argues that the trial court was not compelled to terminate Respondent’s parental rights, that particular findings of fact in the trial court’s termination order are not supported by competent evidence and sufficient findings of fact, that the trial court failed to make certain findings required by N.C. Gen. Stat. § 7B-1110(a), and that H.N.H.’s and H.L.H.’s best interests "were not reasonably or rationally" served by termination of her parental rights.

"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) (2017). In deciding whether terminating parental rights is in a juvenile’s best interest,

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.G.S. § 7B-1110(a)(1)-(6). This Court reviews the trial court’s best interest determination for abuse of discretion. In re D.L.W. , 368 N.C. 835, 842, 788 S.E.2d 162, 167 (2016). "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) (alteration in original) (quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980) ). While Respondent acknowledges that this Court reviews the trial court’s best interest determination for an abuse of discretion, she argues that the trial court’s best interest determination is a conclusion of law that should be reviewed de novo on appeal. This Court has consistently applied the abuse of discretion standard to the trial court’s best interest determination. See, e.g. , 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).

Rearranged for clarity, the trial court made the following pertinent findings of fact related to the children:

69. That [H.N.H.] is five (5) years old. [H.L.H.] is four (4) years old.

70. That [Respondent-Mother] has a bond with the children. The children are happy to see [Respondent-Mother] during visits. They did not have to be prompted to give [Respondent-Mother] hugs. They went to the park and watched cartoons on her cell phone. [Respondent-Mother] sang the "clean up song" with them at the end of visits.

71. That on the other hand, when [the children’s guardian ad litem ] visited the children, they never spoke about their mother or their wanting to see her.

72. That [Respondent-Mother] wants to reunify with her children although she once wanted to relinquish her parental rights to the [children] if her mother could obtain custody of them.

73. That the children are placed with a two parent foster family. This family is not a prospective adoptive home. The foster mother used to own a daycare and has a room in her home set up like a classroom. Ms. Simmons-Smith [the children’s DSS social worker] would like for the maternal grandmother to be considered as a placement option but she has not attempted to contact [DSS] since the [children] were removed from her care. It is unknown if the maternal grandmother has obtained new housing and employment. The places she identified as possible residences were both homes operated by the Charlotte Housing Authority (CHA). CHA has strict rules about who can live in their homes and those individuals would have to be approved first.

74. That the maternal grandmother provided Ms. Simmons-Smith with names of two family members to be possible placement options for the children. Ms. Simmons-Smith contacted them and they all said they could not care for the children.

75. That Family Finders attempted to find other family members but did not come up with any names.

76. That [the children’s guardian ad litem ] believes the children are adoptable due to their age, their good behavior, and the way they care for one another.

77. That there are no other barriers to adoption aside from the parental rights of the parents remaining intact.

78. That the children are receiving therapy at Kids Central to help with the transitions between placement providers.

....

82. That the [children] are in need of a safe, stable, permanent, and appropriate environment. Finding a safe, stable, and permanent environment can only be accomplished through

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