in the Court of Appeals 19 February 2018.
by Respondents from order entered 25 April 2017, and appeal
by Respondent-Mother from order entered 2 August 2016, by
Judge J.H. Corpening, II, in District Court, New Hanover
County Nos. 15 JT 314, 143, 144.
Rebekah W. Davis for Respondent-Appellant Mother.
Wood for Respondent-Appellant Father.
Jennifer G. Cooke for Petitioner-Appellee New Hanover County
Department of Social Services.
Poe Adams & Bernstein LLP, by Catherine R.L. Lawson, for
Guardian ad Litem.
and Respondent-Father (together, "Respondents")
appeal from order entered 25 April 2017 terminating their
parental rights as to their minor children A.A.S., A.A.A.T.,
and J.A.W. (together, "the children").
Respondent-Mother also appeals the trial court's
permanency planning order entered 2 August 2016 requiring
concurrent plans of adoption and reunification.
Respondent-Father's appeal relates only to A.A.S. and
A.A.A.T., as he is not the biological father of J.A.W.
J.A.W.'s purported father has failed to submit to a
paternity test or respond to contact from the parties. He is
not a party in this action.
appellate counsel filed a no-merit brief, pursuant N.C. R.
App. P. 3.1(d) following a stated thorough review of the
record. Counsel demonstrated he informed Respondent-Father of
his right to personally file a brief within thirty days.
Counsel asks this Court to conduct an independent review of
the record for possible error. Respondent-Father has failed
to file his own written arguments.
Factual and Procedural Background
moved to North Carolina in June 2015 when A.A.A.T. was about
eight months old and J.A.W. was about three years old. A.A.S.
had not yet been born. After moving to North Carolina, the
family was homeless for around two weeks and resided in a
Salvation Army shelter ("the shelter"). While at
the shelter, Respondent-Father was observed shaking A.A.A.T.
on 3 June 2015. Soon thereafter, Respondent-Mother was seen
hitting J.A.W. on the head and dragging him by his shirt. As
a result of a domestic violence incident between Respondents,
the family was discharged from the shelter. The New Hanover
County Department of Social Services ("DSS") filed
a neglect and dependency petition on 10 June 2015 and assumed
non-secure custody of A.A.A.T. and J.A.W.
were required to complete Comprehensive Clinical Assessments
and to participate in parenting classes. Respondent-Mother
completed the assessment on 2 July 2015 and was diagnosed
with "major depressive disorder, recurrent
moderate." The assessment recommended that
Respondent-Mother undergo a psychological evaluation and
continue parenting classes. The psychological evaluation was
completed on 7 October 2015 and found that Respondent-Mother
had an IQ of 57, which "places her below the
1st percentile . . . and is described as extremely
low intelligence." The psychological evaluation
recommended that, after parenting classes, Respondent-Mother
receive follow-up, one-on-one instruction in a therapy
setting. Finally, the psychological evaluation noted that
Respondent-Mother's level of intellectual functioning
"will necessarily slow the rate and degree of adaptive
change that can occur" and that "regular contact
and consistent support is essential."
completed his Comprehensive Clinical Assessment on 10
September 2015 and received a psychological evaluation on 21
October 2015. The evaluation found that Respondent-Father was
"extremely low functioning" and "struggled on
a measure of common sense, judgment and moral
reasoning." The psychologist noted that "the
combination of two individuals with limited cognitive
abilities may be problematic, especially when tasks arise
that are complex and/or require the input/contributions from
was born to Respondents on 30 December 2015. DSS filed a
Juvenile Petition on 31 December 2015 alleging neglect due to
the lack of progress made by Respondents in a prior case and
the continued injurious environment. DSS was awarded
non-secure custody of A.A.S. and she was adjudicated a
neglected juvenile on 10 February 2016.
permanency planning hearing involving all three children was
held on 14 July 2016 and the trial court entered an order on
2 August 2016 ("the 2 August 2016 order"). The 2
August 2016 order found that both DSS and the guardian ad
litem recommended a primary plan of adoption with a
concurrent plan of reunification. The trial court made
numerous findings of fact supporting a plan of adoption,
including that Respondent-Mother had ignored the medical
needs of the children, was not financially stable, was not
cooperative in following her case plan, had continually
tested positive for drugs, and that her parenting skills had
not sufficiently improved. As a result, the trial court
ordered that the permanent plan would be adoption with a
concurrent plan of reunification and that DSS should proceed
with a termination of parental rights action.
subsequent permanency planning hearing was held on 15
December 2016 and an order was filed on 4 January 2017
("the 4 January 2017 order"). This order maintained
the prior custody arrangement and noted that DSS had made
reasonable and appropriate efforts to implement the permanent
filed a Petition to Terminate Parental Rights of Respondents
on 15 August 2016. DSS alleged in the petition that there
were sufficient facts to warrant a determination that grounds
existed for the termination of parental rights pursuant to
N.C. Gen. Stat. § 7B-1111(a)(1), (2), (5), (6), and (7)
(2015), and hearings were held on 19 January 2017 and 24
February 2017 ("the termination hearings"). The
trial court entered an order terminating Respondents'
parental rights on 25 April 2017 ("the 25 April 2017
for Respondent-Father filed a no-merit brief on his behalf,
pursuant to N.C. R. App. P. 3.1(d), stating "[t]he
undersigned counsel has made a conscientious and thorough
review of the [r]ecord on [a]ppeal . . . . Counsel has
concluded that there is no issue of merit on which to base an
argument for relief and that this appeal would be
frivolous." Counsel asks this Court to "[r]eview
the case to determine whether counsel overlooked a valid
issue that requires reversal." Additionally, counsel
demonstrated that he advised Respondent-Father of his right
to file written arguments with this Court and provided him
with the information necessary to do so. Respondent-Father
failed to file his own written arguments.
with the requirements of Rule 3.1(d), counsel directs our
attention to two issues: (1) whether the trial court erred in
concluding that grounds existed to terminate
Respondent-Father's parental rights and (2) whether the
trial court abused its discretion in determining that it was
in the children's best interests to terminate
Respondent-Father's parental rights. However, counsel
acknowledges he cannot make a non-frivolous argument that no
grounds existed sufficient to terminate
Respondent-Father's parental rights or that it was not in
the children's best interests to terminate his parental
not find any possible error by the trial court. The 25 April
2017 order includes sufficient findings of fact, supported by
clear, cogent, and convincing evidence to conclude that at
least one statutory ground for termination existed under N.C.
G.S. § 7B-1111(a)(1). See In re Taylor, 97
N.C.App. 57, 64, 387 S.E.2d 230, 233-34 (1990). Moreover, the
trial court made appropriate findings on each of the relevant
dispositional factors and did not abuse its discretion in
assessing the children's best interests. N.C. Gen. Stat.
§ 7B-1110(a) (2015). See In re S.R., 207
N.C.App. 102, 109-10, 698 S.E.2d 535, 541 (2010).
Accordingly, we affirm the trial court's order as to the
termination of Respondent-Father's parental rights.
Respondent-Mother's Appeal - Cessation of Reunification
first argues that the trial court failed to make essential
findings after it "implicitly eliminated reunification
as a permanent plan and ceased reunification efforts" in
the 2 August 2016 order. N.C. Gen. Stat. § 7B-906.2(b)
(2015) requires that at a permanency planning hearing, a
trial court must adopt concurrent permanent plans and
identify a primary and secondary plan. Reunification must
remain one of the identified plans unless the trial court
"made findings under [ N.C. Gen. Stat. § 7B-901(c)
(2015)] or makes written findings that reunification efforts
clearly would be unsuccessful or would be inconsistent with
the juvenile's health or safety." N.C. G.S. §
7B-906.2(b). While reunification remained one of the two
permanent plans, Respondent-Mother argues that it is
self-contradictory to commence termination of parental ...