IN THE MATTER OF:
Wake County
No. 05 J 723
T.M.W.
Wake County Attorney's Office, by Corinne G. Russell and
Albert Singer, for petitioner-appellee.
Womble Carlyle Sandridge & Rice, PLLC, by Theresa M. Sprain,
for Guardian ad Litem-appellee.
Winifred H. Dillon for respondent-appellant.
MARTIN, Chief Judge.
Respondent is the father of T.M.W. (hereinafter “the child”).
His parental rights to her were terminated on the grounds that (1)
respondent neglected the child and (2) respondent is incapable of
providing for the proper care and supervision of the child.
Counsel for respondent timely filed notice of appeal from the order
entered 8 May 2006 but failed to serve the notice of appeal on
petitioner. The notice of appeal also failed to contain
respondent's signature as required by Rule 3A of the Rules of
Appellate Procedure. Upon petitioner's motion, the trial court
dismissed the appeal on 20 July 2006. This Court allowed
respondent's petition for a writ of certiorari on 27 July 2006. Although respondent lists 36 assignments of error in the
record on appeal, he brings forward and argues only assignments of
error numbers 34 and 35. Assignment of error number 34 challenges,
as not supported by the findings of fact, the court's finding of
fact number 100 and conclusion of law number 3 in which the court
found and concluded it is in the best interest of the child to
terminate respondent's parental rights. Assignment of error number
35 posits that the court's order terminating respondent's parental
rights constituted an abuse of discretion. All of the other
assignments of error, including those contending findings of fact
are unsupported by evidence, are deemed abandoned. N.C. R. App. P.
28(b)(6).
“The trial court has discretion, if it finds that at least one
of the statutory grounds exists, to terminate parental rights upon
a finding that it would be in the child's best interests.” In re
Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001).
Findings of fact that are not challenged on appeal are deemed
supported by the evidence and are binding upon this Court. In re
Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003). An
order terminating parental rights must be affirmed if the findings
of fact support conclusions of law based upon the termination of
parental rights statutes. In re Oghenekevebe, 123 N.C. App. 434,
436, 473 S.E.2d 393, 395-96 (1996).
Factors to consider in determining the child's best interests
include: (1) the age of the child; (2) the likelihood of adoption;
(3) the impact in accomplishing the permanent plan; (4) the bondbetween the child and the parent; (5) the relationship between the
child and a proposed adoptive parent or other permanent placement;
and (6) any other relevant consideration. N.C. Gen. Stat. § 7B-
1110(a) (2006). The court is 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 (3) (2006). As a discretionary
decision, the trial court's disposition order will not be disturbed
unless it could not have been the product of a reasoned decision.
In re J.B., 172 N.C. App. 747, 751, 616 S.E.2d 385, 387, aff'd, 360
N.C. 165, 622 S.E.2d 495 (2005).
Respondent contends in his brief that the court abused its
discretion by terminating respondent's parental rights. He argues
that “it has not been shown that termination and adoption are
necessary to achieve a permanent plan for this child.” (Emphasis
in original.) He maintains that a safe and permanent home can be
provided to the child, without terminating his parental rights, by
granting guardianship or custody to the paternal relatives who
currently have custody of the child. He argues guardianship will
achieve the necessary permanency as N.C. Gen. Stat. § 7B-600(b)
provides that a guardianship may not be terminated without specific
findings that the guardian is unfit or the guardianship is no
longer in the child's best interests.
We are not persuaded by defendant's argument. The legislative
policy with respect to parental rights is “to recognize the
necessity for any juvenile to have a permanent plan of care at theearliest 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.” N.C. Gen. Stat. §
7B-1100(2) (2005). Guardianship or legal custody does not have the
permanence of termination of parental rights as guardianship and
custody can be changed, as respondent himself notes. Guardianship
can be changed pursuant to N.C. Gen. Stat. § 7B-600(b) and a
custody order may be changed or modified following a review hearing
pursuant to N.C. Gen. Stat. § 7B-906 or permanency planning hearing
pursuant to N.C. Gen. Stat. § 7B-907.
The testimony of the prospective adoptive mother, a paternal
aunt, is perhaps the most telling and forceful. When asked how
she would feel about respondent at some point becoming able to
parent the child, she responded:
I am no yo-yo; that if [the child] goes and
stays with [respondent] and gets off the
course that I have her on now, I won't accept
her back. And I don't mean that
disrespectfully. I've got her in my home,
I've gotten used to her, my husband's gotten
used to her. We have developed a bond. She
knows what she can get away with, she knows
what she can't get away with. If she goes to
his home and it's like it generally is like
with [the child's older sister] _ she was
there, then she was at my mom's, then she was
back there, and she was with my mom _ see what
I'm saying, I can't live that way. I can't
live that way.
Further, she expressed concern about the child's future should
something happen to her and her husband. She testified that if the
child were adopted by them, she has made her son and daughter aware
they would have an obligation to care for the child as theirsibling should she and her husband die or become incapacitated.
She understood that adoption would give her children some legal
rights to the child. She could not be assured of this if she only
had legal custody of the child. She further noted that as legal
guardian or custodian, she could not qualify for day care
assistance for the child whereas as the adoptive parent she could.
She also related how in her family it had “been a tradition”
for a relative to raise another relative's child “[e]xcept for some
of us broke away from that tradition and did not allow it to
happen.” She remarked, “[I]t's not anything unusual in our family
for someone to go and visit my mother and say, I'm leaving the
children there for the week-end and they're there until they
graduate.” Respondent himself was raised by her mother,
respondent's natural grandmother. Although she anticipates that
breaking away from this tradition might cause strain on her
relationship with some members of her family, she expects to have
the support of her husband's family, friends of the family, and her
mother.
The court's findings of fact show that the child has been in
the custody of the paternal aunt and her husband and residing in a
safe, stable home since March 2005, when the child's mother
relinquished her parental rights to the child. The adoptive
parents are both employed, the prospective adoptive mother as
nursing manager of a medical center. They own a four-bedroom home.
The child and adoptive parents are “extremely bonded” and the child
“has an extremely rich relationship with her caregiver.” The childcalls the prospective adoptive mother “Ninnie” and the prospective
adoptive father “Papa.” Although the paternal aunt is “supportive”
of respondent having visitations with the child, respondent has not
made efforts to visit. The child has no bond with respondent, and
respondent does not have a family support system in place such that
he could care for the child.
Finally, and not insignificantly, the court could find no
evidence to show that termination of respondent's parental rights
is not in the child's best interests. Respondent does not contest
this finding of fact and fails to cite any evidence to show that
termination of respondent's parental rights is not in the child's
best interests.
We hold the court did not abuse its discretion by terminating
respondent's parental rights. The order is
Affirmed.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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