In re K.M.F., No. COA08-519 (N.C. App. 10/7/2008), COA08-519

CitationNo. COA08-519
Case DateOctober 07, 2008
CourtCourt of Appeal of North Carolina (US)

J. Gregory Matthews, for Yadkin County Department of Social Services, Petitioner.

Michael E. Casterline, for Respondent Father.

Carol Ann Bauer, for Respondent Mother.

Tracie M. Jordan, for Guardian Ad Litem.

ARROWOOD, Judge.

Respondent Mother M.S. (Mother) appeals from an order terminating her parental rights to the minor children, K.M.F. and K.B.D. Respondent Father T.F. (Father) appeals from the same order terminating his parental rights to the minor child, K.M.F. We affirm.

In late 2005, seven-year-old K.M.F. and her eleven-year-old half-sister K.B.D. lived with Mother and R.S. (Step-Father) in Yadkin County, North Carolina. K.M.F.'s Father resided in Mt. Airy and had been out of contact with K.M.F. for "a period [of] two years." On 20 December 2005, Yadkin County Department of Social Services (DSS) received a report of sexual abuse of K.M.F. and K.B.D., which stated that the children were "forced to perform oral sex on [Step-Father, and] . . . forced [to have] vaginal sex [with] him[.]" The report also stated that Step-Father "kiss[ed] their breast area and [bit] the area[.]" The children said that "[M]other was present at times when the abuse occurred[.]" The report explained that "[t]hese children were [previously] in foster care in Surry County due to domestic violence between their mother and [T.F.] (Father) . . . [and] Surry County substantiated sex abuse on [K.M.F.] and [K.B.D.] with [Father] being the perpetrator." As a result of these allegations, DSS obtained nonsecure custody of the children.

On 21 December 2005, DSS filed juvenile petitions alleging that the minor children were abused due to the "commission of a sex or pornography offense with or upon the juvenile in violation of the criminal law[,]" and neglected because the children live "in an environment injurious to [their] welfare."

On 17 February 2006, the court entered an order adjudicating K.M.F. and K.B.D. abused and neglected children pursuant to N.C. Gen. Stat. § 7B-101. The court revised the order on 7 March 2006, finding that Mother "admitted to the Social Worker that her husband, [R.S.], and she participated in sexual activities with both children, including oral sex, sexual fondling and viewing pornographic sites on a computer." Mother and [R.S.] (Step-Father) "are facing criminal charges arising out of these circumstances."

On 23 February 2006, Father, who had been absent from K.M.F.'s life for two years, enrolled in an Out of Home Family Services Agreement Plan with DSS, which requested that Father: (1) complete a psychological evaluation; (2) complete a sex offender evaluation; and (3) complete parenting classes. Father failed to complete parenting classes and refused to take a polygraph exam, which was a critical step in the sex offender evaluation. Father underwent a psychological evaluation with Dr. Phillip Batten on 20 April 2006 and 15 May 2006. Dr. Batten stated that "[Father] reads on about a third grade level, and that both socially and intellectually his world is `limited.'" Father has an IQ of 72.

On 4 December 2006, the trial court relieved DSS of reunification efforts with Father due to "[Father's] refusal to complete the requirements of [the service agreement] and his psychological inability to function as a single parent without some support from friends, family and professionals." The court relieved DSS of reunification efforts with Mother due to her incarceration on two counts of felony child abuse and two counts of felony aiding and abetting felony child abuse arising from the sexual acts against the minor children, K.M.F. and K.D.B.

On 31 January 2007, petitioner filed a motion in the cause to terminate parental rights, alleging that grounds existed to terminate Father's parental rights pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1), 7B-1111(a)(2), 7B-1111(a)(3) and 7B-1111(a)(6), and Mother's parental rights pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1), 7B-1111(a)(2), 7B-1111(a)(3), 7B-1111(a)(6), 7B-1111(a)(7), and 7B-1111(a)(8). On 20 December 2007, the trial court entered an order terminating the parental rights of Mother and Father, concluding that the following grounds for termination existed with regard to Father: N.C. Gen. Stat. §§ 7B-1111(a)(1), 7B-1111(a)(2) and 7B-1111(a)(6). The court concluded that the following grounds for termination existed with regard to Mother: N.C. Gen. Stat. §§ 7B-1111(a)(1), 7B-1111(a)(2), 7B-1111(a)(6), 7B-1111(a)(7) and 7B-1111(a)(8). From this order, Mother and Father appeal.

Termination of Parental Rights

"`A termination of parental rights proceeding is a two-stage process.'" In re T.D.P., 164 N.C. App. 287, 288, 595 S.E.2d 735, 736 (2004) (quoting In re Howell, 161 N.C. App. 650, 656, 589 S.E.2d 157, 160 (2003)). "At the adjudication stage, the petitioner must show by `clear, cogent and convincing evidence' the existence of one or more of the statutory grounds for termination of parental rights set fourth in section 7B-1111." In re Yocum, 158 N.C. App. 198, 203, 580 S.E.2d 399, 403 (2003). "If the trial court determines that any one of the grounds for termination listed in § 7B-1111 exists, the trial court may then terminate parental rights consistent with the best interests of the child." In re T.D.P., 164 N.C. App. at 288, 595 S.E.2d at 736. The trial court may terminate parental rights on the basis of several grounds, but "[a] finding of any one of the . . . separately enumerated grounds is sufficient to support a termination." In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984). On appeal, the standard of review from a trial court's decision to terminate parental rights is whether "the court's findings of fact are based upon clear, cogent and convincing evidence and the findings support the conclusions of law." In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996).

Mother first argues that the trial court erred in terminating her parental rights without considering whether placement with a relative, specifically the children's Grandmother and Aunt, was possible. Because we find that the trial court did, in fact, consider familial placement, this argument is without merit.

N.C. Gen. Stat § 7B-907(b)(2) (2007) requires that the trial court consider "whether legal guardianship or custody with a relative or some other suitable person should be established, and if so, the rights and responsibilities which should remain with the parents."

Mother specifically argues that "[b]y terminating [Mother's] parental rights, the trial court . . . cut[s] the children's ties to their blood relatives[,]" which was not in the best interest of the children. Mother contends that because "[Grandmother] and [Aunt] had been `in contact' with [Mother's attorney] . . . [and] had `a desire to keep a relationship with the children[,]'" the trial court "should have explored [the option of placement with Grandmother or Aunt] before destroying all of the children's family ties." We find this argument unconvincing because the trial court did, in fact, consider placement with the minor children's relatives.

On 14 December 2006, the trial court entered a permanency planning review order, from which Mother did not appeal, stating the following:

The Court has considered placement of the minor children with a relative who is willing and able to provide proper care and supervision in a "safe home," having given the possibility of placement with a relative priority. However, The Court finds that the best interest of the minor children would be served by continuing their custody with the Yadkin County Department of Social Services for placement at their discretion. . . . Even after giving placement with a relative priority, it is in the best interest of these children to continue their custody with the Yadkin County Department of Social Services with placement at the discretion of the Yadkin County Department of Social Services and at this time no relative or others should be given guardianship or custody of these children.

The trial court also found that "[t]hese children have been severely sexually abused. Because of this abuse, any person who is the caretaker for these children will need to be extremely knowledgeable in the care and treatment of sexually abused children."

At the termination hearing, Wheeler provided further evidence regarding the consideration of placement with Mother's relatives. Wheeler stated that she had spoken to Mother's sister, who expressed no desire "for the children to be with her or [Grandmother]." We conclude the trial court considered and made written findings regarding N.C. Gen. Stat. § 7B-907(b)(2) in its permanency planning order. Because we find that alternative familial placement was considered by the trial court, Mother's assignment of error fails.

In Mother's next argument, she contends the trial court erred in concluding that it is in the best interest of the minor children K.M.F. and K.B.D. that Mother's parental rights be terminated. We disagree.

"[W]e reemphasized the fundamental principle underlying North Carolina's approach to controversies involving child neglect and custody . . . that the best interest of the child is the polar star." In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251 (1984). "The welfare or best interest of the child is always to be treated as the paramount consideration to which even parental love must yield." Wilson v. Wilson, 269 N.C. 676, 678, 153 S.E.2d 349, 351 (1967). If one or more of the specific grounds for termination listed in N.C. Gen. Stat. § 7B-1111 are shown in the adjudication...

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