832 S.E.2d 162
N.C. Ct. App.2019Background
- DSS became involved with Mother and Father from 2011 onward for longstanding substance abuse, mental health issues, supervision failures, and unsafe living conditions; children Tonya and Madeline were removed in Feb 2016 and adjudicated neglected/dependent by consent in March 2016.
- Respondents signed an OHFSA requiring housing, employment, substance-abuse/mental-health treatment, psychiatric evaluation, random drug screens, parenting education, and avoidance of criminal activity but made minimal progress; both parents had repeated incarcerations.
- Permanency planning order (June 2017) changed the primary goal to adoption and secondary to reunification; DSS petitioned to terminate parental rights (July 2017) on grounds including neglect and willful failure to make reasonable progress.
- At disposition (June 2018) the trial court found grounds under N.C. Gen. Stat. § 7B-1111 and concluded termination was in the children’s best interests, terminating both parents’ rights.
- Mother appealed only the best-interest determination; Father’s counsel filed a Rule 3.1(e) “no-merit” brief and the Court conducted an independent discretionary review.
Issues
| Issue | Petitioner/Appellee (DSS) Argument | Respondent Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion in finding termination was in children’s best interests (Mother) | Termination is necessary to accomplish the permanency plan of adoption and best interests factors support termination | Mother argued court failed to make §7B-906.2(b) permanency-planning findings and failed to consider (a) her purported sobriety/progress, (b) bonds with mother/relatives, (c) DSS’s alleged failure to make reunification efforts | Affirmed. Court did not abuse discretion; adoption was primary plan, required best-interest factors were considered, and unchallenged findings are binding |
| Whether §7B-906.2(b) findings were required at the termination hearing (Mother) | Permanency findings already made in earlier permanency order; termination proceedings governed by Chapter 7B Article 11 | Mother argued reunification was still primary and the §7B-906.2(b) findings were prerequisite to ceasing reunification | Held that §7B-906.2(b) applies to permanency hearings, not termination hearings; permanency order had already set adoption as primary plan |
| Whether trial court failed to consider relevant §7B-1110(a)(6) factors (Mother) | Trial court considered credibility and weighed evidence (including mother’s incarceration and limited treatment), found weak parental bond and limited family requests for contact | Mother argued court ignored her claimed year of sobriety, parent-child and kinship bonds, and alleged DSS failures | Court found it considered those factors; credibility and weight of evidence for sobriety were for the trial court; unchallenged findings about bond stand |
| Validity of father’s termination (Neglect) and scope of appellate review after counsel’s no‑merit brief (Father) | Trial court had sufficient findings showing neglect and failure to correct conditions; appellate court may exercise discretion to review record though Anders procedure does not automatically apply | Counsel filed a Rule 3.1(e) no‑merit brief; Father submitted no pro se issues; Father argued no error | Court exercised its discretion to review record, found no prejudicial error, and affirmed termination for neglect; explained Anders/Finley inapplicable and limited Anders‑type review absent rule or statute |
Key Cases Cited
- In re E.M., 202 N.C. App. 761 (discussing standard of review for best-interest determinations)
- State v. Hennis, 323 N.C. 279 (abuse-of-discretion definition)
- In re D.L.H., 364 N.C. 214 (unchallenged trial findings bind appellate court)
- In re Whisnant, 71 N.C. App. 439 (trial judge’s duty to weigh evidence and credibility)
- In re J.A.A., 175 N.C. App. 66 (no requirement to make findings on all evidence; only relevant factors must be found)
- In re D.H., 232 N.C. App. 217 (trial court must make findings on factors placed in issue)
- In re H.D., 239 N.C. App. 318 (definition of relevance for required findings under §7B-1110)
- In re C.L.C., 171 N.C. App. 438 (trial court may give greater weight to some best-interest factors)
- Garrett v. Burris, 224 N.C. App. 32 (appellate court will not reweigh evidence)
- Anders v. California, 386 U.S. 738 (procedures when counsel finds no nonfrivolous issues in criminal first appeal of right)
- Pennsylvania v. Finley, 481 U.S. 551 (Anders procedures not required on later post-conviction appeals)