IN RE: D.J.J.H. (2010)

Respondent-mother, Vida H., appeals from the district court's order terminating her parental rights in her seven-year-old son, D.J.J.H. (“D.H.”). After careful review, we affirm.

Facts

On 11 February 2005, the Lincoln County Department of Social Services (“DSS”) filed a juvenile petition alleging that D.H. was a neglected and dependent juvenile. The petition alleged that, on 6 February 2005, respondent-mother and the father¹ became engaged in a physical altercation in the presence of D.H., and respondent-mother sustained a black eye and bruise on her arm. The father had a drinking problem, and the fight began after respondent-mother poured his liquor down the sink. The next day, the two met with a treatment team and the father admitted to the altercation. Additionally, respondent-mother stated that “her nerves were shot and her scoliosis was getting worse and she could not handle [D.H.].” Respondent-mother also stated that she no longer wanted D.H. and wanted to relinquish her rights, and she signed a safety assessment indicating the same. Based on a psychological evaluation that was completed in November 2001, the petition further alleged that respondent-mother had a full-scale I.Q. of 63 and was not capable of independently making major life decisions. On 11 February 2005, the trial court entered a nonsecure custody order, giving custody of D.H. to DSS, and D.H. was placed with a friend of respondent-mother's. On 14 February 2005, the trial court appointed a guardian ad litem (“GAL”) for respondent-mother based on the findings of the psychological evaluation.

The trial court adjudicated D.H. neglected and dependent in an adjudication order entered 23 May 2005. Respondent-mother stipulated that D.H. was a dependent juvenile and the father stipulated that D.H. was a neglected and dependent juvenile. The trial court found the allegations contained in the juvenile petition to be true and that both stipulations were voluntary. The court further found that respondent-mother understood the consequences of the relinquishment of parental rights she executed on 5 April 2005 and that the relinquishment was voluntary. Based on the foregoing, the trial court adjudicated D.H. to be a neglected and dependent juvenile and found that there were no relatives willing and able to provide a safe home for D.H. In the dispositional portion of the order, the trial court continued custody with DSS and maintained D.H.'s placement with respondent-mother's friend. The trial court implemented a permanent plan of reunification with the father and ordered him to complete various goals designed to accomplish this end. Based on respondent-mother's relinquishment, she was not given visitation with D.H., and the trial court found that reunification efforts were unnecessary. In a permanency planning order entered 26 May 2006, the trial court ceased reunification efforts with the father, based on the father's failure to comply with substance abuse treatment and counseling.

On 25 September 2006, respondent-mother revoked the relinquishment of her parental rights to D.H., after finding out that D.H. had been moved to a therapeutic foster home. Respondent-mother's relinquishment had been based on her belief that D.H. would be adopted by her friend; however, D.H. was moved to the foster home on 9 June 2005 due to severe behavioral problems. On 3 November 2006, the trial court entered a new dispositional order. The trial court concluded that a permanent plan of adoption was in D.H.'s best interest at the time. However, the trial court ordered respondent-mother to complete a psychological evaluation, a parental fitness evaluation, and a drug and alcohol evaluation, and to follow all recommendations of the evaluations. The trial court denied visitation, indicating that respondent-mother needed to complete the evaluations before the court would address the issue of visitation.

Over the course of the next seven months, respondent-mother made requests for visitation with D.H. The trial court declined to allow any visitation until after it had an opportunity to review reports from DSS and D.H.'s GAL. After a permanency planning hearing on 23 April 2007, the trial court denied respondent-mother's request for visitation with D.H. At the hearing, D.H.'s psychologist testified that D.H. suffers from Post Traumatic Stress Disorder (“PTSD”) and is mildly retarded. The psychologist also testified that reunification with respondent-mother would be very disruptive to D.H. Finally, the trial court found that D.H. was in a stable home, that he was making progress, and that respondent-mother had not made any progress in her ability to address D.H.'s special needs.

At the next permanency planning hearing, which was held on 22 October 2007, the trial court again denied respondent-mother's request for visitation with D.H. However, the trial court allowed for a visit with D.H.'s foster parents, during which respondent-mother was allowed to observe D.H. without making him aware of her presence. DSS arranged the visit and explained to respondent-mother that she was not to have any direct contact or communication with D.H. During the observation, however, respondent-mother disobeyed DSS's instruction and, without permission, entered the visitation room and began yelling “I'm your mama” to D.H. Respondent-mother refused to leave the room, and a social worker was forced to intervene. In a permanency planning order entered 3 March 2008, the trial court ceased reunification efforts and implemented a concurrent plan of adoption or guardianship with a court-approved caretaker. The court based its determination on respondent-mother's history, her inability to make needed changes, her absence from D.H.'s life, and D.H.'s behavioral problems. The trial court also ceased any visitation efforts involving respondent-mother.

On 1 April 2008, DSS filed a petition to terminate respondent-mother's parental rights with respect to D.H. on the following grounds: (1) neglect; (2) willfully leaving the juvenile in foster care for over twelve months without showing reasonable progress in correcting the conditions which led to removal; (3) willfully failing to pay a reasonable portion of the cost of care for the juvenile; and (4) dependency.² The trial court conducted an adjudication and disposition hearing on 14 April 2009. DSS called four witnesses at the hearing.

Jimmy Perkins, a paramedic, testified first. He responded to a suicide attempt involving respondent-mother on 2 January 2009. When Mr. Perkins arrived, respondent-mother was near railroad tracks. She stated that she did not want to live anymore and that she had planned to wait for a train to come by and sit down in front of it. Respondent-mother refused treatment, but, after she calmed down, she agreed to go to King's Mountain Hospital.

Next, Lisa Gonzin, a social worker at Lakewood Care Center, testified. Ms. Gonzin explained that Lakewood is an assisted living facility and that most of its patients have mental illnesses. At the time of the hearing, respondent-mother was a patient at Lakewood and had been there since 9 February 2009. Ms. Gonzin testified that respondent-mother had been diagnosed with depression, anxiety, mild mental retardation, hypertension, and back pain. This was her third admission at Lakewood since 2006. Ms. Gonzin testified that she felt it was in respondent-mother's best interest to stay at Lakewood and that her condition had improved.

Next, Sandy Kennedy, the program manager for foster care and adoption with DSS, testified. Ms. Kennedy provided the history of D.H.'s case. Ms. Kennedy also testified regarding D.H.'s behavioral and developmental issues. When D.H. was originally placed in foster care, he needed speech and occupational therapy and had shown physical aggressiveness and thrown tantrums. Ms. Kennedy testified that D.H. has a mild mental retardation diagnosis and that his I.Q. has fluctuated between 55 and 63. He has difficulty at school and was recently reduced to a half-day schedule due to his behavioral problems. He has been hospitalized several times, takes a number of medications, and receives weekly psychiatric therapy. At the time of the hearing, D.H. remained in the same therapeutic foster home, but his potential adoptive parents decided that they could not adopt him. Despite these issues, Ms. Kennedy testified that D.H.'s long-term plan is adoption and that DSS was continuing to make efforts to find D.H. an adoptive home through various referrals. Ms. Kennedy testified that the results of respondent-mother's psychological and parenting assessments indicated that she would need intensive assistance to recognize D.H.'s needs, if she was reunited with him. Ms. Kennedy also testified that case management services, individual counseling, and parenting classes were also recommended for respondent-mother, but she failed to cooperate with her case manager and did not follow through with counseling or parenting classes.

Lastly, DSS called respondent-mother to testify. She testified regarding her physical and mental illnesses. Additionally, she testified that she quit school after the ninth grade, has never worked, and her only source of income is social security disability.

In an order entered 13 August 2009, the trial court found the existence of the following grounds for termination: (1) neglect; (2) willfully leaving the juvenile in foster care for over twelve months without showing reasonable progress in correcting the conditions which led to removal; and (3) dependency. On disposition, the trial court concluded that it was in D.H.'s best interests to terminate respondent-mother's parental rights in D.H. Respondent-mother gave timely notice of appeal from the orders.

Discussion

First, respondent-mother argues that the trial court erred by failing to follow the two-stage process for termination of parental rights. It is well-established that termination of parental rights proceedings involve two phases: (1) the adjudication stage, where the petitioner is required to prove the existence of grounds for termination by clear, cogent, and convincing evidence, and (2) the disposition stage, where the court's decision whether to terminate parental rights is discretionary. N.C. Gen.Stat. §§ 7B-1110,-1111 (2009); In re White, 81 N.C.App. 82, 85, 344 S.E.2d 36, 38, disc. review denied, 318 N.C. 283, 347 S.E.2d 470 (1986). Although termination of parental rights proceedings involve a two-stage process, a trial court is not required to conduct two separate hearings to determine, first, whether grounds for termination exist, and, if so, whether termination is in the best interests of the children. Id.

Here, the trial court conducted one hearing and entered one order, thereby consolidating the two stages. Respondent-mother appears to recognize that two separate hearings are not required, but she contends that, as a result of combining the two phases, the trial court improperly considered the adoptability of the juvenile before determining whether grounds for termination existed. As an initial matter, we note that respondent-mother did not assign error to the trial court's finding of fact number 60, which states that, “with the consent of the parties, this Order reflects both the Adjudicatory and Dispositional portions of the Termination of Parental Rights hearing.” Accordingly, finding of fact number 60 is binding on appeal. Johnson v. Herbie's Place, 157 N.C.App. 168, 180, 579 S.E.2d 110, 118, disc. review denied, 357 N.C. 460, 585 S.E.2d 760 (2003).

Furthermore, we are unpersuaded that the trial court improperly combined the adjudicatory stage and the dispositional stage during the termination hearing. As support for respondent-mother's contention, she claims that the trial court improperly considered a psychological evaluation of D.H., along with other adjudicatory exhibits. Respondent-mother contends that this exhibit is akin to a predisposition report, could only be considered during disposition, and therefore should not have been considered with the other adjudicatory evidence.

Contrary to respondent-mother's assertion, we find a juvenile's psychological evaluation to be distinguishable from a predisposition report, which a trial court is prohibited from considering prior to the completion of the adjudicatory hearing. N.C. Gen.Stat. § 7B-808(a) (2009). Here, D.H.'s psychological evaluation was relevant during adjudication, because DSS alleged dependency as a ground for termination. In determining whether a juvenile is dependent, the trial court is required to “address both[:] (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.” In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005). Thus, evidence of D.H.'s behavioral problems and special needs was certainly relevant to the court's determination of whether respondent-mother had the ability to provide care and supervision for D.H. in light of her own illnesses.

Respondent-mother also cites to the following as evidence that the trial court improperly considered dispositional evidence before considering adjudicatory evidence: (1) during his closing argument, counsel for DSS argued best interests prior to arguing grounds for termination; and (2) the trial court's findings of fact contained no clear demarcation between dispositional findings of fact and adjudicatory findings of fact. We find both arguments unavailing. Although counsel for DSS may have switched the order of his argument, counsel's actions provide no evidence that the trial court improperly considered best interests prior to finding grounds for termination. Second, respondent-mother has not cited to any case or statute that prohibits a trial court from “intermingling” its findings of fact. Based on our review of the order, we find some facts to be clearly dispositional, and those findings are further detailed in the section that follows. Without evidence to the contrary, we must presume that the trial court applied the correct legal standard to each stage of the termination proceedings:

Moreover, since a proceeding to terminate parental rights is heard by the judge, sitting without a jury, it is presumed, in the absence of some affirmative indication to the contrary, that the judge, having knowledge of the law, is able to consider the evidence in light of the applicable legal standard and to determine whether grounds for termination exist before proceeding to consider evidence relevant only to the dispositional stage.

White, 81 N.C.App. at 85, 344 S.E.2d at 38. Based on the foregoing, we find no error in the trial court's combination of adjudication and disposition.

Next, respondent-mother argues that the trial court's findings of fact do not support its conclusion that termination of parental rights was in D.H.'s best interest. After an adjudication determining that grounds exist for terminating parental rights, the trial court is required to consider the following factors in determining whether termination is in the juvenile's best interest:

(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. Gen.Stat. § 7B-1110(a) (2009). We review the trial court's determination that a termination of parental rights is in the best interests of the juvenile for an abuse of discretion. In re Anderson, 151 N.C.App. 94, 98, 564 S.E.2d 599, 602 (2002). “Abuse of discretion exists when the challenged actions are manifestly unsupported by reason.” Barnes v. Wells, 165 N.C.App. 575, 580, 599 S.E.2d 585, 589 (2004) (citation and quotation marks omitted).

In its order, the trial court made the following undisputed findings of fact, which specifically address the criteria listed in N.C. Gen.Stat. § 7B-1110(a):

24. That the child lived with Mr. and Mrs. Barker until September of 2006. The child has since been placed with Mr. and Ms. Carl Spencer. However, the Spencer's do not plan to adopt the child. DSS has made a referral to an adoption agency and the Department considers the child to be adoptable.

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51. That the child has lived in the same foster home for the last three (3) years. Those foster parents do not plan to adopt the child. The Department considers the child to be adoptable. Referrals have been made by the Department to locate an adoptive home.

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54. That the child has not had any contact with the mother since April of 2005 except for the aforementioned unplanned contact at the Department.

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56. That the Court finds that the child is of a young age. The social worker testified in Court that in her opinion the child is adoptable. Termination of parental rights will not only aid but will be necessary for the permanent plan of adoption to be carried out for the juvenile.

57. The bond between the juvenile and his mother is extremely limited, if not nonexistent.

The trial court made a finding of fact regarding D.H.'s date of birth, which shows that the trial court considered D.H.'s age. Additionally, we find that the trial court's findings detailing respondent-mother's relinquishment of parental rights are relevant on disposition as evidence of the bond between the parent and the juvenile. Based on the foregoing, we are satisfied that the trial court considered all the relevant factors in the best interests determination.

Respondent-mother does not argue that the trial court failed to consider all the factors listed in N.C. Gen.Stat. § 7B-1110. Instead, respondent-mother contends that the trial court incorrectly determined that termination was in D.H.'s best interest, based on D.H.'s behavioral and developmental issues, likelihood of adoption, the lack of prospective adoptive parents at the time of the termination, and respondent-mother's inability to visit D.H. while he was in DSS custody. Essentially, respondent-mother suggests that the trial court should have given more weight to D.H.'s likelihood of adoption in determining whether termination was in his best interest. We disagree. Contrary to respondent-mother's suggestion, a trial court is not required to find that a child is adoptable before terminating a parent's parental rights. See In re Norris, 65 N.C.App. 269, 275, 310 S.E.2d 25, 29 (1983) (“It suffices to say that such a finding [of adoptability] is not required in order to terminate parental rights.”), cert. denied, 310 N.C. 744, 315 S.E.2d 703 (1984). And, the trial court's findings regarding D.H.'s adoptability were based on the competent testimony of Ms. Kennedy. She admitted that D.H.'s behavioral problems were certainly a “weaknesses,” but she also believed that, with consistent therapy and the help of foster parents, he could transition into an adoptive home. Ms. Kennedy also testified that D.H.'s young age, seven, was an advantage to finding him an adoptive placement. Accordingly, we believe that the trial court's best interest determination was reasonable.

Respondent-mother cites to In re J.A.O., 166 N.C.App. 222, 601 S.E.2d 226 (2004), in support of her argument. In J.A.O., we determined that the trial court abused its discretion in terminating the mother's parental rights to her child, Jeff. At the time of the termination proceedings in J.A.O., Jeff was fourteen years old and had a history of being verbally and physically aggressive and threatening. He had been diagnosed with bipolar disorder, ADHD, pervasive developmental disorder, borderline intellectual functioning, non-insulin dependent diabetes mellitus, and hypertension. Id. at 227-28, 601 S.E.2d at 230. As a result of his special needs, Jeff had been in foster care since the age of eighteen months, had been shuffled through nineteen different treatment centers, and had no prospective adoptive parents, including his foster family at the time. In reviewing the trial court's best interest determination, we set forth the following analysis:

Respondent, Jeff's biological mother, is the only family member connected to and interested in Jeff. His biological father was not present at the termination proceeding and could not be located through judicial summons. Although Jeff's foster family have shown support and care for him, they are unwilling to adopt him and undertake the important responsibilities associated with care for an individual who possesses significant and lifelong debilitating behaviors․ [I]t is highly unlikely that a child of Jeff's age and physical and mental condition would be a candidate for adoption, much less selected by an adoptive family.

Id. We further reasoned that

[a]fter “balancing the minimal possibilities of adoptive placement against the stabilizing influence, and the sense of identity, that some continuing legal relationship with natural relatives may ultimately bring, we must conclude that termination would only cast [Jeff] further adrift.”

Id. at 228, 601 S.E.2d at 230 (first alteration added) (quoting Matter of A.B.E., 564 A.2d 751, 757 (D.C.1989)). Thus, we concluded that it was not in Jeff's best interest to become a “legal orphan” and held that the trial court abused its discretion in terminating the mother's parental rights. Id.

We find the instant case to be distinguishable from J.A.O. To begin, D.H. is much younger than Jeff was at the time of termination, making adoption more likely. Although D.H. has mental health issues, his condition does not appear to be as serious as Jeff's, and he has not been involved in the foster care system as long as Jeff had been. In the four years he has been in DSS custody, D.H. has only been in two placements, and he has been in the most recent placement for three years. Furthermore, the trial court in J.A.O. acknowledged that, given Jeff's mental health issues and age, he was unlikely to be adopted. Here, Ms. Kennedy testified that D.H. was adoptable.

The behavior of respondent-mother is also markedly different from the behavior of the mother in J.A.O. The mother in J.A.O. had a bond with Jeff and had made progress in correcting the conditions that led to the filing of the petition to terminate her parental rights. Id. at 224, 601 S.E.2d at 228. Here, respondent-mother had originally relinquished her parental rights to D.H. At the time of the hearing, she had not seen him in four years, and the bond between mother and child was virtually non-existent. Additionally, she had not made sufficient progress in correcting the conditions that led to removal.

Lastly, the GAL in J.A.O. recommended that the mother's parental rights with respect to Jeff not be terminated; the trial court terminated her rights despite the recommendation. Id. at 225, 601 S.E.2d at 229. Here, the GAL agreed that termination of respondent-mother's parental rights was in D.H.'s best interest. Based on the foregoing, we find J.A.O. to be distinguishable from the instant case, and conclude that the trial court did not abuse its discretion in determining that terminating respondent-mother's parental rights was in the best interest of D.H. Accordingly, we affirm the decision of the trial court.

Affirmed.

HUNTER, ROBERT C., Judge.

Judges McGEE and ERVIN concur.