An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 September 2005
IN THE MATTER OF:
D.R.M. Wayne County
S.S.M. Nos. 03 J 177, 03 J 178,
T.D.M. 03 J 179
Appeal by respondent mother from orders entered 8 April 2004
by Judge Rose V. Williams in Wayne County District Court. Heard in
the Court of Appeals 17 August 2005.
E.B. Borden Parker, for petitioner-appellee Wayne County
Department of Social Services.
Timothy I. Finan, for petitioner-appellee Guardian ad Litem.
The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for
S.W. (respondent) appeals from orders entered 8 April 2004
terminating her parental rights to her minor children, D.R.M.,
S.S.M., and T.D.M. (collectively, the children). We affirm.
On 10 October 2002,
respondent placed her children with Ms.
Geraldine Braswell (Braswell), a friend of the family who is now
seeking to adopt the children.
On 21 October 2002, DSS filed
juvenile petitions alleging the children were neglected. Thepetitions alleged respondent was unable to provide stability for
her children because she had no home or income. On the date of the
petitions, respondent was living with a friend in Fremont who had
no room in his home
for the children.
Respondent had previously
lived with her grandmother in Fremont, moved to live with her
mother, returned to her grandmother's home, and then moved into her
On 19 December 2002, respondent admitted her children were
neglected and dependent and the court adjudicated the children to
be neglected and dependent. The court ordered respondent to submit
to drug testing, psychological and psychiatric evaluations, follow
all treatment and therapy recommendations, and maintain stable
On 23 March 2003, the court found respondent had failed to
comply with its order, had not seen the children recently, and the
children had been living with Braswell for one year and three
months. The court ordered visitations between respondent
children to occur at Braswell's discretion
. Respondent looked for
other housing in Goldsboro through Courtyard. Respondent was
unemployed at the time of the hearing
On 8 May 2003,
the court made findings of fact that it was
contrary to the welfare of the children to be returned to
respondent. The court ordered adoption as its permanency plan andrelieved DSS of reunification efforts. DSS filed to terminate
respondent's parental rights.
On 18 March 2004, respondent's parental rights were terminated
and the permanency plan for the children became adoption.
Respondent argues the trial court abused its discretion by:
(1) changing the permanency placement plan to adoption six months
after the children where removed; (2) finding no reasonable efforts
toward reunification were required of DSS; (3) finding
reasonable efforts of reunification had been made when no evidence
to support such a conclusion; (4) ordering
respondent's visitation rights at Braswell's discretion
as fact respondent's visitations were not restricted and
her visits were inconsistent and not substantial when visits were
solely within Braswell's discretion; (6) ordering DSS to find more
money to assist Braswell, but never ordering DSS to assist
respondent in caring for her children and failing to recognize DSS
gave more assistance to Braswell than to respondent; (7) finding
the termination of respondent's parental rights
to be in the best
interest of the children after respondent had completed much of the
case plan and was making reasonable efforts to regain custody of
her children; (8) finding
as fact respondent did not have a stableresidence when she had been living in the same home for over one
year; and (9) finding
as fact respondent exerted little effort to
be reunited with her children.
III. Assignments of Error Dismissed
Respondent's first seven assignments of error pertain to
orders entered other than the 8 April 2004 orders appealed from.
The dispositional and permanency plan for the children was ordered
on 5 June 2003. The subsequent permanency planning review hearings
reaffirmed DSS's plan and the trial court's 5 June 2003 order.
Respondent could have appealed from the trial court's prior orders
but has failed to do so. See In re Padgett, 156 N.C. App. 644, 577
S.E.2d 337 (2003) (appeal from permanency planning orders); see
also N.C. Gen. Stat. § 7B-1001 (2003). We are bound by the
findings of fact and conclusions of law in the 5 June 2003 order.
See Kelly v. Kelly, 167 N.C. App. 437, 443, 606 S.E.2d 364, 369
(2004) (When an order is not appealed, it becomes the law of the
case. (quoting Johnson v. Johnson, 7 N.C. App. 310, 313, 172
S.E.2d 264, 266 (1970)); see also Hayden v. Hayden, 178 N.C. 259,
263, 100 S.E. 515, 517 (1919) (This decree was not appealed from,
and is therefore valid and binding in every respect.)
Because respondent's first seven assignments of error do not
pertain to the 8 April 2004 orders she appealed from, theseassignments of error are not properly before us and are dismissed.
N.C.R. App. P. 10(a) (2004).
IV. Clear, Cogent, and Convincing Evidence
Respondent's assignments of error properly before us are: (1)
whether the court's findings of fact are based upon clear, cogent
and convincing evidence; and (2) whether the findings support the
conclusions of law in the orders. In re Huff, 140 N.C. App. 288,
291, 536 S.E.2d 828, 840 (2000) (quotation omitted), disc. rev.
denied and appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001). We
review the trial court's conclusions of law de novo. Scott v.
Scott, 157 N.C. App. 382, 385, 579 S.E.2d 431, 433 (2003) (citing
Browning v. Helff, 136 N.C. App. 420, 423, 524 S.E.2d 95, 97-98
A. Stable Housing
Respondent argues the trial court erred in finding as fact she
did not maintain a stable place for the children to live.
Respondent testified she had been living in her current home
for one and one-half years and did not have enough room for her
children. When asked if she had any other potential places for her
and the children to live, respondent testified her mother had found
a place for her but she could not afford the rental payments.
Respondent testified she was on a waiting list for housing. On
cross-examination when asked where respondent would take thechildren if the judge awarded her custody, respondent testified she
would go to her grandmother's house. Respondent also testified she
was not welcome to move back in with her grandmother. Later,
respondent testified she would go to her sister's house if given
. Respondent's sister is unemployed, receives $180.00 per
month in child support, and lives in a three bedroom home with her
three children of her own. Respondent further testified the only
housing assistance she sought was through Courtyard.
DSS presented clear, cogent, and convincing evidence
respondent had not procured a stable home.
The trial court did not
err in finding respondent
procure a stable home for the
This assignment of error is overruled.
B. Unification Efforts
Respondent argues the trial court erred in finding as fact
respondent exerted little effort to have her children reunited with
On 23 March 2003, the court found respondent had not completed
the psychiatric and psychological evaluations previously ordered
and she had not visited with the children recently. Respondent
rarely visited the children and when she did, the children were
present at the grandmother's home. Respondent testified she never
attempted to visit the children while they were in the custody of
DSS. Respondent began attending mental health evaluations in
September 2003. Respondent testified she had not completed any
drug screens as ordered by the court. Respondent was not working
at the time of the hearing and since October 2003, respondent had
applied for one job. Respondent testified she saw her children
every week when Braswell would allow her until the trial court
ordered visitation to cease.
DSS presented clear, cogent, and convincing evidence that
respondent failed to put forth reasonable efforts to
children reunited with her.
This assignment of error is overruled.
V. Best Interests of the Children
A termination of parental rights proceeding involves a two
step process under N.C. Gen. Stat. §§ 7B-1109 and 7B-1110.
Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 5, disc. rev.
denied, 358 N.C. 543, 599 S.E.2d 42 (2004).
standards are applied at each phase. In re White, 81 N.C. App. 82,
85, 344 S.E.2d 36, 38, cert. denied, 318 N.C. 283, 347 S.E.2d 470
The petitioner seeking termination must show by clear,
cogent, and convincing evidence that one or more of the grounds
specified by N.C. Gen. Stat. § 7B-1111(a) to terminate parental
rights exists. Id.; see N.C. Gen. Stat. § 7B-1109 (2003); N.C.
Gen. Stat. §
7B-1111 (2003). It is within the trial court's
discretion to terminate parental rights upon a finding that itwould be in the best interests of the child. In re Shermer, 156
N.C. App. 281, 285, 576 S.E.2d 403, 406-07 (2003) (citing In re
Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001)). On
appeal, [w]e review the trial court's decision to terminate
parental rights for an abuse of discretion. In re Anderson, 151
N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002) (citing In re Mitchell
M., 148 N.C. App. 483, 490, 559 S.E.2d 237, 242, temporary stay
allowed, 355 N.C. 349, 561 S.E.2d 891, rev'd on other grounds, 356
N.C. 288, 570 S.E.2d 212 (2002)).
Here, the court found it would be in the best interests of the
children to terminate respondent's parental rights and allow the
children to be adopted by Braswell. In deciding the placement of
the children, the trial court took into consideration: (1)
Braswell was selected by the parents as a proper foster placement
for the children; (2) Braswell had maintained physical custody of
the children for over one year; (3) the children had bonded with
her; (4) the children had adjusted well and thrived at Braswell's
home; and (5) Braswell expressed the desire to adopt all three
Respondent has failed to show the trial court abused its
discretion in finding and concluding it was in the best interests
of the children to terminate respondent's parental rights. This
assignment of error is overruled.
DSS met its burden of proving by clear, convincing, and cogent
evidence that respondent failed to provide stable housing for her
or her children and
that respondent made no reasonable efforts to
be reunited with her children. The trial court did not abuse its
discretion in finding and concluding termination of respondent's
parental rights was in the best interests of the children. The
trial court's orders are affirmed.
Judges MCCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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