IN THE MATTER OF:
Wake County
No. 05 J 485
S.M., C.E., E.E.
Minor Children
No brief filed by petitioner, Wake County Human Services.
Alexandra S. Gruber, North Carolina Guardian ad Litem Program,
for guardian ad litem-appellee.
Mary McCullers Reece, for respondent-appellant.
MARTIN, Chief Judge.
Respondent is the mother of three minor children, S.M., C.E.
and E.E. She appeals from a permanency planning order that changed
the permanent plan for the children from reunification to adoption.
On 4 November 2005 the minor children S.M. and C.E., ages five
years and four years, were adjudicated as neglected and dependent
by the Wake County District Court. The court adopted as the
permanent plan for the children reunification and an alternative
plan of placement of custody with a relative. On 3 November 2005,
the third child, E.E., was born to respondent. E.E. was
adjudicated as neglected and dependent on 6 January 2006. The
court directed Wake County Human Services to pursue the samepermanent and alternative plans as for the two older siblings.
The court held the permanency planning hearing giving rise to
the present appeal in mid-March 2006. On 18 April 2006, the court
filed the subject order. The court incorporated by reference the
court summary prepared by Wake County Human Services and the
guardian ad litem report to the court. These documents and the
court's findings provide the following factual backdrop.
Prior to moving to Wake County and the birth of the children
at issue in this proceeding, respondent lost custody of two
children in 1992 due to ongoing neglect. She gave birth to a third
child in 1995. That child was taken into custody due to a positive
drug screen at the time of the child's birth. Her parental rights
to these children were subsequently terminated.
Respondent has had continual problems with substance abuse,
lack of proper care of her children, criminal activity, and
incarcerations. Since May of 2001 Wake County Human Services
received and investigated six child protective services reports
concerning the children at issue in this appeal. These reports
were substantiated for neglect and improper care due to the
parents' drug usage and sexual abuse of the oldest child. Among
other things, the children were being left at a day care for a full
twenty-four hours for days at a time. Respondent was arrested and
incarcerated on 23 August 2005 on charges of violations of
controlled substances laws and possession of a firearm by a
convicted felon. She gave birth to the youngest child, E.E.,
while incarcerated on these charges. Wake County Human Servicesplaced the two older children with the paternal grandmother of the
younger children. The youngest child is placed in a licensed
foster home. The grandmother does not desire to permanently care
for the children.
At the time of the permanency planning hearing in March 2006,
respondent had been released from incarceration and had enrolled in
TROSA, a residential substance abuse treatment program. This
treatment program lasts for two years, the first year of which the
participant is not allowed to have contact with his or her
children. The program also does not permit children to reside with
the participant parents.
The court found that while the TROSA program is a good
substance abuse treatment program, “it is not reasonable to expect
that the children should wait for one year in foster care to even
be able to visit their mother and two years before they can even be
considered to be placed with their mother.” The court made the
following ultimate finding of fact:
30. That the following facts demonstrate that
reunification efforts would be futile or
inconsistent with the child's safety and need
for a safe home within a reasonable time: a)
The mother has chosen to attend a two-year
substance abuse program which will not allow
her children to visit regularly until at least
one year has lapsed and will not be able to
have her children reside with her for at least
two years. Moreover, the mother is unable to
provide any other family support or relatives
who could care for the children while she
completes the TROSA Program. The mother has a
serious history of substance abuse that has
lasted over 15 years. The mother has been
enrolled in various treatment facilities over
her 15-year substance abuse history; however,
she has not been able to maintain sobrietyfrom abusing substances. The mother has
indicated to the Court that she is committed
to this program knowing it is a two-year
program and it would be at least two years
before her children could reside in her home.
A Court of competent jurisdiction terminated
the mother's parental rights to three other
children.
The court concluded as a matter of law: (1) that it is in the best
interests of the children that the court adopt the plan proposed by
Wake County Human Services and the guardian ad litem; (2) that the
best plan of care to achieve a safe, permanent home for the
children within a reasonable time is adoption; and (3) that
reunification efforts would be futile or inconsistent with the
children's need for a safe home within a reasonable time.
In reviewing a permanency planning order, we determine whether
the findings of fact are supported by competent evidence and
whether the conclusions of law are supported by the findings of
fact. See In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134,
137 (2003). The findings of fact are binding on appeal if
supported by competent evidence. In re H.W., 163 N.C. App. 438,
443, 594 S.E.2d 211, 213, disc. review denied, 358 N.C. 543, 599
S.E.2d 46 (2004). Findings of fact to which error is not assigned
and brought forward are deemed to be supported by competent
evidence. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729,
731 (1991). “[T]he trial court's conclusions of law are reviewable
de novo.” Starco Inc. v. AMG Bonding and Ins. Services, Inc., 124
N.C. App. 332, 335-36, 477 S.E.2d 211, 214-15 (1996).
Respondent contends the court erred in ordering the change of
the plan to adoption on the ground the court's conclusions of laware not supported by its findings of fact and that its findings and
conclusions do not support the court's order. However, she does
not bring forward any assignments of error contending the findings
of fact are not supported by the evidence.
Our General Assembly has declared that the policy in this
state with regard to termination of parental rights is: (1) “to
provide judicial procedures for terminating the legal relationship
between a juvenile and the juvenile's biological or legal parents
when the parents have demonstrated that they will not provide the
degree of care which promotes the healthy and orderly physical and
emotional well-being of the juvenile”; (2) “to recognize the
necessity for any juvenile to have a permanent plan of care at the
earliest possible age, while at the same time recognizing the need
to protect all juveniles from the unnecessary severance of a
relationship with biological or legal parents”; and (3) to take
action “which is in the best interests of the juvenile” when “the
interests of the juvenile and those of the juvenile's parents or
other persons are in conflict.” N.C. Gen. Stat. § 7B-1100 (2006).
The Juvenile Code is to be “interpreted and construed” to ensure
“that the best interests of the juvenile are of paramount
consideration by the court and that when it is not in the
juvenile's best interest to be returned home, the juvenile will be
placed in a safe, permanent home within a reasonable amount of
time.” N.C. Gen. Stat. § 7B-100(5) (2004). In a situation where
a child has been removed from the home, if a court finds that
efforts to reunify “would be inconsistent with the juvenile'shealth, safety, and need for a safe, permanent home within a
reasonable period of time[,]” it may enter an order directing that
reunification efforts cease. N.C. Gen. Stat. § 7B-507(b)(1)
(2004).
Respondent argues the court abused its discretion by ordering
cessation of reunification efforts and changing the permanent plan
to adoption. “A judge is subject to reversal for abuse of
discretion only upon a showing by a litigant that the challenged
actions are manifestly unsupported by reason.” Clark v. Clark,
301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980). A discretionary
decision “is to be accorded great deference and will be upset only
upon a showing that it was so arbitrary that it could not have been
the result of a reasoned decision.” White v. White, 312 N.C. 770,
777, 324 S.E.2d 829, 833 (1985).
We conclude the court did not abuse its discretion. The
court's findings of fact show that respondent has a significant
long-term history of substance abuse and unsuccessful treatment
programs. If respondent entered the TROSA program, the children
could not reside with her for two years, a delay inconsistent with
the intent of the General Assembly in promoting the implementation
of a permanent plan at the earliest possible time. There is no
guarantee that respondent will successfully complete the program.
We hold the court's findings of fact support its conclusions of law
and its decision to change the permanent plan from reunification to
adoption. The order is affirmed.
Affirmed.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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