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IN THE MATTER OF V.D., COA15-226. (2015)

Court: Court of Appeals of North Carolina Number: inncco20150818423 Visitors: 3
Filed: Aug. 18, 2015
Latest Update: Aug. 18, 2015
Summary: UNPUBLISHED OPINION An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. GEER , Judge . Respondent mother B.W. ("Bonnie") appeals from the district court's order terminating her parental rights in her daughter V.D. ("Violet"). 1 On appeal, Bonnie argues that the trial court abused its d
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UNPUBLISHED OPINION

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Respondent mother B.W. ("Bonnie") appeals from the district court's order terminating her parental rights in her daughter V.D. ("Violet").1 On appeal, Bonnie argues that the trial court abused its discretion in concluding that termination of her parental rights was in Violet's best interests. After careful review, we affirm.

Facts

On 5 December 2013, the Orange County Department of Social Services ("DSS") filed a juvenile petition alleging that six-month-old Violet was a neglected and dependent juvenile. The petition alleged, inter alia, that Violet tested positive for cocaine at birth; that Bonnie tested positive for controlled substances on several occasions, failed to complete outpatient drug treatment, and was discharged from inpatient drug treatment; and that Violet's father was incarcerated for assaulting Bonnie and Violet's grandmother. DSS obtained nonsecure custody of Violet on 10 December 2013.

In an order entered on 16 January 2014, Judge Beverly Scarlett concluded that Violet was a dependent juvenile, based on Bonnie's history of drug abuse, the father's incarceration, and the lack of any other suitable relatives able to care for Violet. The trial court ordered that custody remain with DSS, and that Bonnie enter inpatient treatment for drug addiction. On 31 March 2014, Judge Scarlett entered a permanency planning order finding that Bonnie continued to use drugs and ordering a permanent plan of reunification concurrent with a plan of adoption.

On 6 May 2014, DSS filed a motion to terminate Bonnie's parental rights to Violet, alleging neglect and dependency as grounds for termination, pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (6). On 24 June 2014, Judge Scarlett entered an order changing the permanent plan to adoption. On 20 October 2014 the trial court entered an order finding the existence of both grounds for termination alleged by DSS, and concluding that termination of Bonnie's parental rights was in Violet's best interest. Bonnie appeals.

Discussion

Termination of parental rights proceedings involve a two-stage process: (1) the adjudication stage, where the petitioner is required to prove the existence of grounds for termination; and (2) the disposition stage, where the court considers the best interest of the juvenile. N.C. Gen. Stat. §§ 7B-1110(a), -1111 (2013); In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38 (1986). In this case, Bonnie "does not challenge the trial court's conclusion[] that grounds existed to terminate her parental rights to [Violet]. Nor does she make any other challenges to the adjudicatory stage of the termination proceedings. Therefore, the trial court's adjudication of grounds for terminating [Bonnie's] parental rights is binding on appeal." In re S.R. & N.R., 207 N.C. App. 102, 107, 698 S.E.2d 535, 539-40 (2010).

Bonnie, however, challenges the trial court's dispositional determination. Our Juvenile Code provides that "[a]fter 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 so doing, the trial court is required to consider the following factors and make findings on those 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.

Id. The trial court errs if it fails to make findings demonstrating its consideration of the factors from this list that are relevant to the factual circumstances of the case. See In re E.M., 202 N.C. App. 761, 764-65, 692 S.E.2d 629, 631 (2010). We review the trial court's determination that a termination of parental rights is in the best interest of the juvenile for an abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).

Bonnie first argues that the trial court erred with respect to its consideration of the bond between Violet and Bonnie. See N.C. Gen. Stat. § 7B-1110(a)(4). Finding of Fact No. 28 addresses this factor, and states: "Respondent mother has not seen [Violet] for about eight (8) months. Any remaining bond between Respondent mother and the juvenile is questionable, at best." Bonnie speculates that the "basis for this finding . . . seems to be the Guardian ad Litem court report offered at the termination hearing." Bonnie fails to articulate a basis for this assumption, and we note that there is other evidence in the record that could have supported the trial court's finding. For example, in Finding of Fact No. 17, which is not challenged on appeal, the trial court finds that Bonnie saw Violet only four times during the nine months after DSS obtained custody of Violet and that she was late on two of these occasions and behaved "erratically" on a third.

Moreover, even if the trial court's finding on the bond between Bonnie and Violet was based on the GAL's report, Bonnie has failed to offer a persuasive argument that this was error. Bonnie directs our attention to the GAL's statement in her report, that the "bond that [Violet] did have with her biological mother . . . has been broken by lack of contact since January 2014" and asserts that this written statement was "quite contrary" to the GAL's testimony at the hearing that "I really can't speak to that. I have never seen the two of them in the same room together. I know that [Bonnie] loves her daughter very much, but I have never seen any evidence of the bond between them." Bonnie contends that the trial court erred in basing its finding on a written statement that was contradicted by the GAL's testimony. Assuming, arguendo, that the two statements were inconsistent or somewhat contradictory, it is well-established that "discrepancies in testimony are not an issue of admissibility, but rather of credibility." Bluebird Corp. v. Aubin, 188 N.C. App. 671, 684, 657 S.E.2d 55, 65 (2008) ("`Credibility, contradictions, and discrepancies in the evidence are matters to be resolved by the trier of fact, here the trial judge[.]'" (quoting Smith v. Smith, 89 N.C. App. 232, 235, 365 S.E.2d 688, 691 (1988))). To the extent that there were inconsistencies in the evidence offered by the GAL regarding the bond between Bonnie and Violet, this was an issue for the trial court's resolution. This argument lacks merit.

Next, Bonnie argues that the trial court erred by failing to address the likelihood of adoption. See N.C. Gen. Stat. § 7B-1110(a)(2). In Finding of Fact No. 27, the trial court found that "[Violet] is bonded with her foster parents who are committed to her and want to adopt her. She is walking and talking and appears to be happy in the foster home." Bonnie argues that the trial court erred because this finding does not use the specific language "likelihood of adoption" and contends that the trial court's finding that Violet's foster parents were "committed to her and want to adopt her" "is not synonymous with a finding as to the likelihood of adoption." This contention is without merit.

In addition to Finding of Fact No. 27, the trial court made findings regarding the foster mother's involvement in Violet's physical therapy, and found that "[t]he juvenile . . . is in a safe, stable, permanent home. It is in her best interest that she be free for adoption and adopted by her current foster parents." All of these findings are relevant to the likelihood of adoption. Although the trial court did not use the exact statutory language of subsection (a)(2), given the trial court's detailed findings regarding the prospective adoptive family, it is clear that the trial court considered and made findings regarding the likelihood of adoption. Therefore, we discern no abuse of discretion on the part of the trial court with respect to this factor.

Bonnie also argues that she had made progress at the time of the hearing and, therefore, the parent-child relationship should not be severed. We are not persuaded. At the disposition stage, the trial court's focus is on the best interest of the child, not the circumstances surrounding the parents. See In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251 (1984) ("[T]he fundamental principle underlying North Carolina's approach to controversies involving child neglect and custody [is] that the best interest of the child is the polar star."). "[T]he child and her best interests are at issue here, not respondent's hopes for the future." In re Blackburn, 142 N.C. App. 607, 614, 543 S.E.2d 906, 911 (2001). After our review of the record, we conclude that the trial court made a reasoned decision that termination of Bonnie's parental rights is in Violet's best interest. We find no abuse of discretion in this determination, and we therefore affirm the order of the trial court.

AFFIRMED.

Judges STROUD and TYSON concur.

Report per Rule 30(e).

FootNotes


1. The pseudonyms "Bonnie" and "Violet" are used in this opinion to protect the juvenile's privacy and for ease of reading.
Source:  Leagle

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