Return to
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA07-405


Filed: 7 August 2007

D.M., B.M. and A.M.,

    Minor Juveniles.                Wake County
                                No. 05 JT 744

    Appeal by Respondent from order entered 12 December 2006 by Judge Debra Sasser in District Court, Wake County. Heard in the Court of Appeals 30 July 2007.

    Wake County Attorney's Office, by John W. Strange and Corinne G. Russell, for Petitioner-Appellee Wake County Human Services.

    Shauna Squires McClain for Respondent-Appellant.

    Nelson Mullins Riley & Scarborough LLP, by Wallace C. Hollowell, III, for Guardian ad Litem.    


    McGEE, Judge.

    B.M. (Respondent-Father) appeals an order terminating his parental rights to D.M., B.M., and A.M. (the children). Wake County Human Services (WCHS) filed a juvenile petition on 13 December 2005 alleging that the children were neglected due to (1) unstable housing and finances; (2) domestic violence committed in the presence of the children; and (3) a lack of proper supervision. Specifically, WCHS alleged that the children had lived at thirteen different addresses in three years and had attended six different schools in three counties. The petition further alleged that thechildren, then ages seven, six and four, had been left alone for three days while their mother traveled out of town. The petition further alleged that the children's mother and Respondent-Father were separated. The petition also alleged that Respondent-Father had punched his step-son, J.H., a minor child not a party to this appeal, in the eye.
    WCHS was awarded non-secure custody of the children and placed the children with their maternal aunt and uncle. The trial court adjudicated the children neglected in an order entered 17 January 2006. The trial court ordered that Respondent-Father and the children's mother each have supervised visitation twice each week at separate times. The trial court further ordered that to reunify with the children, Respondent-Father and the children's mother would have to comply with the following requirements:
        a)     maintain suitable, stable housing for a period of at least six months;

        b)     attend all recommended parenting classes age appropriate to the children's needs and demonstrate skills learned;

        c)     satisfactorily complete anger management classes;

        d)     maintain stable employment for a period of at least six months;

        e)     contact Child Support Enforcement and pay child support as directed;

        f)     keep [WCHS] informed of phone numbers and addresses for contact;

        g)     resolve all criminal charges; and

        h)     consistently attend any counseling with the children, if recommended.     WCHS filed a motion for termination of parental rights of Respondent-Father and the children's mother on 13 September 2006, alleging they had neglected the children and had failed to pay child support for at least six months preceding the filing of the termination motion. The motion further alleged that the children's mother had willfully abandoned them. The trial court held a hearing on the motion on 14 November 2006, but Respondent-Father did not attend. The trial court terminated the parental rights of Respondent-Father and the children's mother in an order entered 12 December 2006. Respondent-Father appeals.
    In the record on appeal, Respondent-Father included a total of eighteen assignments of error. However, as he has argued only two, the remaining assignments of error are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6). In addition to the two assignments of error properly preserved for appeal, Respondent-Father includes in his brief a claim that he did not receive timely notice of the termination hearing. Our review of the record reveals that Respondent-Father did not assign error to this alleged deficiency. Therefore, it is beyond the scope of this appeal and will not be reviewed. N.C.R. App. P. 10(a) ("[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal[.]").
    Respondent-Father first contends the trial court abused its discretion in determining that termination of his parental rights was in the best interest of the children. We disagree.
    Once statutory grounds for termination have been established,a trial court is required to "determine whether terminating the parent's rights is in the juvenile's best interest." N.C. Gen. Stat. § 7B-1110(a) (2005). In making this determination, the trial court is required to consider the following factors:
        (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 standard for appellate review of a trial court's decision to terminate parental rights is abuse of discretion. In re Brim, 139 N.C. App. 733, 745, 535 S.E.2d 367, 374 (2000). "A trial court may be reversed for abuse of discretion only upon a showing that its actions are 'manifestly unsupported by reason.'" Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).
    The trial court made the following findings of fact relevant to its determination that termination of Respondent-Father's parental rights was in the best interest of the children:
        14. That the steps identified for [Respondent-Father] to take before the Court would consider [Respondent-Father] as a placement resource were: maintain suitable, stable housing; attend parenting classes anddemonstrate skills learned in visits with the children; complete anger management classes; maintain stable employment suitable to support [Respondent-Father] and his children; pay child support; stay in contact with WCHS; resolve all criminal charges; and participate in the children's treatment if recommended by the therapists.

        . . .

        24. That [Respondent-Father] has maintained his employment at UPS. The Court takes judicial notice of the affidavit of indigency completed by [Respondent-Father] indicating [Respondent-Father's] monthly income is $2,400.00 and his monthly expenses are $600.00.

        25. That [Respondent-Father] did not pay child support in the six months preceding the filing of the petition and did not register to pay child support until last week.

        26. That [Respondent-Father] has not seen the children since on or about April 21, 2006, when he came into contact with them in Charlotte. He purchased some food items for the children.

        27. That [Respondent-Father] completed parenting classes, but that, because he only visited his children one time, did not demonstrate any skills or knowledge he may have learned in those parenting classes.

        28. That [Respondent-Father] has not initiated or completed anger management classes.

        29. That the only information provided to the social worker regarding [Respondent-Father's] current living conditions indicates that he still lives in the hotel from which the children were removed.

        30. That [Respondent-Father] has not kept in touch with the social worker and that the social worker has no reliable contact information for [Respondent-Father].

        31. That the monthly cost of care for eachchild is at least $500.00 and that neither parent has paid a reasonable portion of that cost, despite being capable of doing so. That [Respondent-Father] has worked for UPS during the duration of this case[.]

        32. That the children have been in care for 11 months.

        33. That the circumstances of the mother and [Respondent-Father] are such that neither has made reasonable progress toward correcting the conditions which led to the removal of the children prior to the filing of the Motion for Termination of Parental Rights.

        . . .

        36. That the conduct of the parents has been such as to demonstrate that they will not promote the healthy and orderly, physical and emotional well being of the children.            

        37. That the minor children are in need of a permanent plan of care at the earliest possible age which can be obtained only by the severing of the relationship between the children and their parents by termination of the parental rights of the parents.

        . . .

        39. That the children are 8, 7, and 5 and have had little contact with either parent in the last 11 months.

        40. That the children are placed with maternal relatives and [are] doing well. They have bonded with the [maternal relatives].

        . . .

        42. That the children have less of a bond with [Respondent-Father].

        43. That it is in the best interests of the children that the parental rights of the parents be terminated.
    In In re M.N.C., 176 N.C. App. 114, 625 S.E.2d 627 (2006), the trial court terminated the respondent's parental rights, and therespondent challenged that determination on appeal. We found no abuse of discretion, and noted the trial court's findings established (1) that the child was six years old; (2) that the child had been placed in foster care for a year and a half; (3) that the foster family demonstrated a commitment to the child; (4) that the respondent failed to obtain a psychological evaluation, a substance abuse assessment, or complete anger management classes; and (5) that the respondent failed to visit with the child on a consistent basis. Id. at 122-23, 625 S.E.2d at 633. Likewise, in the present case, based upon the above findings made by the trial court, particularly the findings regarding the respective bonds of the children with Respondent-Father and with their maternal relatives, we discern no abuse of discretion by the trial court. We overrule this assignment of error.
    In his second assignment of error, Respondent-Father asserts that the trial court's order terminating his parental rights should be reversed because the guardian ad litem (GAL) of the children failed to interview the paternal grandmother regarding a possible placement of the children with her. As a threshold matter, we note that Respondent-Father failed to make any objection to the GAL's performance during the termination proceeding. Each of the detailed reports filed by the GAL in these proceedings, including the report prepared specifically for the termination hearing, were admitted into evidence with no objection from Respondent-Father. Respondent-Father's failure to raise any objection to the GAL's performance of her duties in this case precludes our review of thisissue on appeal. See N.C.R. App. P. 10(b)(1). We note that although Respondent-Father argues that the plain error standard applies, "the plain error rule has not been expanded to civil cases in general, or to child custody cases in particular." In re B.D., 174 N.C. App. 234, 245, 620 S.E.2d 913, 920 (2005), disc. review denied, 360 N.C. 289, 628 S.E.2d 245 (2006).
    Even assuming arguendo that Respondent-Father had properly preserved this issue for review, the record demonstrates that the GAL fulfilled her statutory duties in this case. See N.C. Gen. Stat. § 7B-601(a) (2005). The record reveals that the trial court appointed the GAL on the same date that the juvenile petition was filed; that the GAL, or her attorney, attended every hearing conducted in this case; and that the GAL filed several detailed reports for the trial court's consideration. Furthermore, Respondent-Father has failed to cite any authority for his contention that an alleged deficiency in the actions taken by a GAL constitute grounds for overturning a termination order which is otherwise supported by sufficient findings of fact and conclusions of law. Respondent-Father cites In re R.A.H., 171 N.C. App. 427, 431-32, 614 S.E.2d 382, 385 (2005), in which this Court reversed a termination order and remanded for a new termination hearing, because the trial court failed to timely appoint a GAL for the child. However, as Respondent-Father acknowledges, in the present case, the trial court did timely appoint a GAL. We, therefore, find R.A.H. does not support Respondent-Father's assertion. We overrule Respondent-Father's second assignment of error.    Affirmed.
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***