In the Matter of L.H.
| Decision Date | 15 March 2011 |
| Docket Number | No. COA10–523.,COA10–523. |
| Parties | In the Matter of L.H., A Minor Child. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by respondent from order entered 2 February 2010 by Judge Timothy I. Finan in Wayne County District Court. Heard in the Court of Appeals 7 September 2010.
Baddour, Parker & Hine, P.C., Goldsboro, by James W. Spicer, III, for petitioner-appellee.
Windy H. Rose, Columbia, for respondent-appellant.Penry Riemann PLLC, Raleigh, by Neil A. Riemann, for guardian ad litem.
Respondent father appeals from the order terminating his parental rights to his son, L.H. (“Luke”).1 On appeal, respondent father does not dispute that he is incapable of caring for his son. He argues, however, that the trial court erred in determining that he lacked an appropriate alternative child care arrangement and in subsequently concluding that grounds, N.C. Gen.Stat. § 7B–1111(a)(6) (2009) (dependency), existed to terminate his parental rights. 2
After this matter was on appeal, respondent father filed a Rule 60(b)(2) motion following the procedure set out in Bell v. Martin, 43 N.C.App. 134, 142, 258 S.E.2d 403, 409 (1979), rev'd on other grounds, 299 N.C. 715, 264 S.E.2d 101 (1980). In that motion, respondent father pointed out that, in the disposition phase of the proceedings, the trial court had relied heavily on Luke's bond with his maternal grandmother and the plan that she would adopt Luke in reaching the court's decision that termination of parental rights was in Luke's best interests. The Rule 60(b)(2) motion asked that the trial court set aside its termination of parental rights order because Luke's guardian ad litem had since filed a motion for review asserting that while Luke was living with his maternal grandmother, he was living in an abusive environment.
The trial court held a hearing on the motion in conjunction with a review hearing and filed an order indicating that it would deny the motion because (1) the trial court would still find that grounds existed to terminate respondents' parental rights, and (2) respondents had failed to present evidence that it was not in Luke's best interests not to terminate those rights. The issues before this Court are whether the trial court erred in terminating respondent father's parental rights in the initial order and, also, whether the trial court erred in determining that the Rule 60(b)(2) motion should be denied.
We affirm the trial court's decision that grounds existed to terminate respondent father's parental rights. The trial court's finding that respondent father had not offered an alternative placement for Luke is sufficient, in conjunction with the undisputed determination that respondent father lacked the capacity to care for Luke, to support the court's conclusion that grounds existed under N.C. Gen.Stat. § 7B–1111(a)(6).
We must, however, reverse the disposition and the order as to the Rule 60(b)(2) motion because the trial court combined the Rule 60(b)(2) hearing with what was essentially a new dispositional hearing and concluded that it would still find that termination was in the best interests of Luke even in the absence of the maternal grandmother. The trial court lacked jurisdiction to conduct a new dispositional hearing while this matter was on appeal, and the record contains no indication that the parties received proper notice that the trial court would be conducting a new dispositional hearing. We, therefore, remand for a new dispositional hearing to determine whether termination of respondent father's parental rights is in Luke's best interest.
On 3 April 2008, the Wayne County Department of Social Services (“DSS”) was contacted shortly after Luke's birth because the hospital staff was concerned that his mother was unable to care for him. Hospital staff informed DSS that respondent mother was 20 years old and mentally retarded, that respondent father was 17 years old and mentally retarded, and that respondent mother lived with her mother, who was respondent mother's legal guardian.
DSS social worker Tammy Mathis went to the hospital to investigate the report. Ms. Mathis spoke with respondent mother, respondent father, and Luke's maternal grandmother and developed a safety plan for Luke. The plan established that Luke would stay in the care of his maternal grandmother and that his maternal grandmother would supervise respondent mother's contact with Luke.
On 14 January 2009, DSS filed a juvenile petition alleging that Luke was a dependent juvenile. DSS further alleged that both respondent mother and respondent father agreed to have the maternal grandmother pursue guardianship of Luke. On 26 March 2009, the trial court filed an order finding that (1) respondent mother admitted that, at the time of the filing of the petition, Luke was a dependent juvenile, (2) respondent father admitted he was unable to care for Luke, and (3) respondent father's mother, the paternal grandmother, was not willing to have Luke live with her. The trial court adjudicated Luke a dependent juvenile and ordered continued placement of Luke in the home of the maternal grandmother.
After a review hearing on 23 April 2009, the trial court found that DSS had attempted to work with respondent parents, but neither parent had the ability to parent Luke. The trial court conducted a permanency planning hearing on 6 August 2009 and entered an order on 26 August 2009 finding that respondent parents were both mentally challenged; that DSS and the guardian ad litem recommended that the plan for Luke be adoption; that the maternal grandmother “is willing and anxious to adopt [Luke] if [Luke] is free for adoption”; that neither respondent mother nor respondent father is able to care for Luke; that the paternal grandmother was unable to care for Luke at that time; and that DSS had taken reasonable steps to attempt to reunite Luke with a parent, but was unable to do so because of the mental condition of respondent parents. The trial court then ordered that the permanent plan be termination of parental rights and adoption.
On 10 September 2009, DSS filed a petition to terminate respondent parents' parental rights based on N.C. Gen.Stat. § 7B–1111(a)(6) in that respondent mother and respondent father were incapable of providing care and supervision for Luke such that Luke was a dependent juvenile. The trial court held a hearing on the termination petition on 10 December 2009. By order filed 2 February 2010, the trial court made the following pertinent findings of fact:
4. That the Department of Social Services was contacted about this juvenile while the juvenile was in the hospital after his birth. An investigation ensued and the Department of Social Services made a plan for the safety for [sic] the juvenile, and that plan was placement of the juvenile with a relative.
5. That after investigation, the Department of Social Services received input from both parents and on its own, placed the juvenile with ... the maternal grandmother.
6. That the mother's plan had been to take the juvenile home to her mother's house, but not necessarily place the child in the custody of her mother, [the maternal grandmother].
7. That neither parent has offered an alternative placement for the juvenile.
8. That it was the plan of [DSS] that placed the juvenile with a relative, the maternal grandmother, not the plan of the parents.
....
13. That in an order of the Court entered on February 26, 2009, and signed on March 24, 2009, the mother of the juvenile admitted that at the time of the filing of the Petition, the juvenile was a dependent juvenile and that the father of the juvenile admitted that he is unable to care for the juvenile and that his mother, the paternal grandmother is unwilling to have the juvenile live with her. The Court also found that the juvenile is a dependent juvenile within the meaning of the North Carolina General Statutes and adjudicated the juvenile a dependent juvenile. Custody of the juvenile was placed with [DSS] and [DSS] was authorized to continue placement of the juvenile in the home of the maternal grandmother....
....
21. That the Court received, without objection, a document from Dr. Muthiah K. Sabanayagam of East Carolina Psychiatric Consultants concerning the father.... [Respondent father's] diagnosis includes Bipolar Disorder I, severe mixed with questionable psychotic features, Attention Deficit Hyperactivity Disorder; Oppositional Defiant Disorder; Moderate Mental Retardation; Acquired microcephaly; severe adoptive difficulties, behavioral difficulties and poor problem solving. It is the opinion of Dr. M.K. Sabanayagam that [respondent father] “Is not capable of parenting a child ... [and] ... should not have independent visitation or the permission to take the child ou[t] of the legal custodian's care independently”.
22. That the Court concurs with the opinion of Dr. M.K. Sabanayagam and so finds.
23. That the Court received, without objection, a letter dated August 3, 2008, concerning the mother ... from Dr. Scott Allen, Ph.D. licensed psychologist with Waynesborough Psychological Services, PLLC. Dr. Allen found that [respondent mother] is mentally retarded and is obviously mentally delayed. Her full scale IQ was 53, placing her in the 0.1 percentile rank of the standardization sample an[d] within the mild range of mental retardation. Dr. Scott Allen feels that there are concerns for the safety of the juvenile based on the mother's limited intellectual functioning and limited judgement and insight. He does not feel that [respondent mother] would be able to adequately care for the juvenile independently. The Court concurs in the opinion of Dr. Scott Allen and so finds.
....
25. That the grounds to terminate the parental rights of the parents of the juvenile are that the parents of the juvenile are incapable of providing the proper care and supervision of the juvenile such that the juvenile is a dependent juvenile within...
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