An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-292
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 19 August 2014


IN THE MATTER OF:

H.S., J.S., P.S., III                         Swain County
                                              Nos. 10 JT 28-30




      Appeal by respondents from order entered 17 December 2013

by Judge Monica Leslie in Swain County District Court.                     Heard in

the Court of Appeals 28 July 2014.


      Justin B. Greene for petitioner-appellee                     Swain     County
      Department of Social Services.

      Richard Croutharmel for respondent-appellant mother.

      Peter Wood for respondent-appellant father.

      Parker Poe Adams & Bernstein LLP, by J. William Porter, for
      guardian ad litem.


      HUNTER, Robert C., Judge.


      Respondents, the mother and father of H.S., J.S., and P.S.

(“the    juveniles”),      appeal     from    an   order     terminating      their

parental rights.       After careful review, we affirm.

                                    Background
                                            -2-
       The   Swain    County    Department         of     Social    Services          (“DSS”)

first became involved with this family on 8 March 2010 when DSS

received a child protective services report alleging that the

juveniles     came      to    school        with        black    eyes      and       bruises.

Respondents      voluntarily         placed       the     juveniles       in     a     kinship

placement with their paternal aunt until June 2010, at which

point they returned to live with respondent mother.                            Respondents

entered into a family services case plan which required them to

have    mental       health    assessments,             parenting       classes,        anger

management       counseling,         refrain       from         corporal       punishment,

transport the juveniles to their counseling appointments, and

maintain     adequate         housing,        transportation,           and          financial

support.

       On 3 September 2010, DSS filed petitions alleging that the

juveniles were neglected due to the respondents’ non-compliance

with the case plan, including a lack of adequate housing and

financial     support.          On     18     April       2011,     the     trial       court

adjudicated the juveniles as neglected.                     The disposition hearing

was held on 13 July 2011.                   The children were placed in the

custody of DSS,         and respondents were ordered to comply with

their case plans.
                                        -3-
       At   the   first   permanency     planning       hearing    on    10   January

2012, the trial court found that the juveniles should remain in

DSS custody, and the case plan should remain reunification.                          At

the    27   August    2012     permanency     planning    hearing       due    to   the

respondents’ non-compliance with the case plan, the court ceased

reunification        efforts    and   changed     the    permanent      plan    to    a

concurrent plan of guardianship or adoption.

       On 11 March 2013, DSS filed termination of parental rights

(TPR) petitions.          The petitions alleged that respondents (1)

neglected the juveniles, (2) willfully left them in placement

outside the home for more than twelve months without showing

that    conditions     were     corrected,     (3)   left    the     juveniles       in

placement for more than six months without paying a reasonable

portion of the cost of care for the juveniles, and (4) as to

father only, did not establish paternity.                See N.C. Gen. Stat. §

7B-1111(2013).        On 17 December 2013, the trial court entered an

order terminating the respondents’ parental rights pursuant to

N.C. Gen. Stat. § 7B-1111(a)(1) and (2) as to both respondents,

and also (a)(3) as to respondent father only.                      See N.C. Gen.

Stat. § 7B-1111(a)(1), (2), and (3)(2013).                Respondents appeal.

                                      Arguments
                                         -4-
       Respondents argue that the trial court erred in terminating

their   parental      rights    since      it   did   not   have     subject    matter

jurisdiction because it had not properly determined whether the

juveniles were subject to the Indian Child Welfare Act (“ICWA”).

We disagree.

       “Whether a trial court has subject-matter jurisdiction is a

question of law, reviewed de novo on appeal.”                      McKoy v. McKoy,

202    N.C.   App.    509,    511,   689    S.E.2d     590,    592    (2010).      The

district court has “exclusive, original jurisdiction over any

case    involving      a     juvenile    who     is   alleged        to   be   abused,

neglected, or dependent” and over “[p]roceedings to terminate

parental rights.”           N.C. Gen. Stat. § 7B-200(a) and (a)(4)(2013).

However,      the    ICWA    allocates     jurisdiction       between     tribal   and

state courts as follows:

         (b) . . . In any State court proceeding for the
         foster care placement of, or termination of
         parental rights to, an Indian child not domiciled
         or residing within the reservation of the Indian
         child's tribe, the court, in the absence of good
         cause to the contrary, shall transfer such
         proceeding to the jurisdiction of the tribe,
         absent objection by either parent, upon the
         petition of either parent or the Indian custodian
         or the Indian child's tribe: Provided, That such
         transfer shall be subject to declination by the
         tribal court of such tribe.

         (c) . . . In any State court proceeding for the
         foster care placement of, or termination of
         parental rights to, an Indian child, the Indian
                                       -5-
        custodian of the child and the Indian child's
        tribe shall have a right to intervene at any
        point in the proceeding.

25 U.S.C. § 1911 (2012).        An “Indian child” is defined as:

        any unmarried person who is under age eighteen
        and is either (a) a member of an Indian tribe or
        (b) is eligible for membership in an Indian tribe
        and is the biological child of a member of an
        Indian Tribe[.]

25 U.S.C. § 1903(4) (2012).

    Here, the applicability of the ICWA was raised when one of

the juveniles told his counselor that he was proud of his Indian

heritage.      The trial court ordered DSS to:

        send an ICWA notice to the Bureau of Indian
        Affairs by July 14, 2013, to place the Bureau on
        notice in the event that any of the juveniles are
        eligible for enrollment in any State or Federally
        recognized Tribe(s). To the extent that any of
        the juveniles are eligible for enrollment in any
        State or Federal recognized Tribe(s), all of the
        ICWA statutes must be complied with.

DSS sent a standard letter of notice to the Bureau of Indian

Affairs (BIA) and did not receive a response.                The juveniles’

guardian ad litem met with respondent father who stated that he

was not Native American, and respondent mother who stated that

she was part Cherokee.           He met with the juveniles’ maternal

grandmother who stated that she and her family were associated

with the Eastern Band of Cherokee Indians.                 The guardian ad

litem   gave    the   Eastern   Band   of    Cherokee   Indians’   enrollment
                                          -6-
office     the     names     of     the     juveniles’      parents,       maternal

grandparents, and maternal great grandparents.                      None of them

were enrolled members.

    At a pre-trial hearing, respondent mother moved to dismiss

the TPR petitions stating that DSS had not complied with the

trial    court’s    order    to   investigate     the     ICWA’s    applicability.

Respondent mother testified that she was not a member of or

associated with any specific tribe and had no specific knowledge

to that effect.       Respondent father testified that he was not a

member of any Indian tribe.           The trial court denied the motion.

The trial court found that “respondent mother did not meet her

burden of showing that the Indian Child Welfare Act applied in

this matter[.]”

    Respondents contend that DSS “assumed an affirmative duty”

regarding the ICWA’s applicability when the trial court ordered

them to investigate.         Respondents cite In re A.R. in support of

their    argument     that    the    trial      court’s     order    for   DSS   to

investigate shows that it “kn[ew] or ha[d] reason to know that

an Indian child [was] involved[.]” In re A.R., ___ N.C. App.

___, ___, 742 S.E.2d 629, 633 (2013).                They argue further that

DSS did not meet its burden because it failed to comply with the

trial court’s order since it only sent notice to the regional
                                           -7-
BIA office, did not investigate other tribes, and did not offer

evidence of correspondence in the record.

       In    determining        whether    the     ICWA    is   applicable,       “[t]he

burden      is   on     the   party   invoking     the    Act    to    show    that   its

provisions        are     applicable      to     the   case     at    issue,     through

documentation or perhaps testimony from a tribe representative.”

In re A.R., ___ N.C. App. at ___, 742 S.E.2d at 633.                           The party

must show “proof . . . of her tribal membership” or the tribe

must respond.            In re C.P., 181 N.C. App. 698, 701, 641 S.E.2d

13, 15 (2007).          The “equivocal testimony of the party seeking to

invoke the Act, standing alone, is insufficient to meet this

burden.”         In re Williams, 149 N.C. App. 951, 957, 563 S.E.2d

202, 205 (2002).

       We believe the present case is distinguishable from In re

A.R.     In In re A.R., this Court remanded the case back to the

trial court because although the respondents had identified a

specific         tribal       heritage,        there     had    been     no      further

investigation.          This Court held that:

            The mere belief by respondent-father as to a
            family connection to a registered Native American
            group would normally not meet the burden of
            triggering the ICWA notification, see id., but in
            this case, based upon the evidence before it, the
            trial court specifically found as fact that [Wake
            County   Human   Services]   should  conduct   an
            investigation.
                                        -8-


In re A.R., ___ N.C. App. at ___, 742 S.E.2d at 633.

      Here,    the    trial     court      ordered     DSS    to   complete   an

investigation and DSS complied.               However, there was no response

from the BIA, and           the specific tribe         that respondent mother

claimed    heritage     to    did   not     identify    any   enrolled   family

members.      There is no evidence to support respondent mother’s

assertion of Indian heritage.             Respondents provided no evidence

other than respondent mother’s “bare assertions” that the ICWA

should apply.     In re C. P., 181 N.C. App. at 699, 641 S.E.2d at

14.   Verbal testimony that her grandfather “had Indian in him”

is “insufficient.”          See In re Williams, 149 N.C. App. at 957,

563 S.E.2d at        205.     Even though respondent mother initially

identified a tribe and DSS complied with a court order to send

notice to the BIA, respondents still had the burden of proving

that the ICWA was applicable.             In re C.P., 181 N.C. App. at 701-

03, 641 S.E.2d at 15-17.            Respondents’ failure to provide any

evidence that the ICWA was applicable was sufficient grounds for

the trial court to hold that it was not applicable.                      In re

Williams, 149 N.C. App at 957, 563 S.E.2d at 205.                    Therefore,

the trial court did not err in finding that respondent mother

had not met her burden of showing that the ICWA did apply.
                                          -9-
       Respondents      next    argue    that       the    trial    court      abused      its

discretion in terminating respondents’ parental rights because

the juveniles are not likely to be adopted.                         Respondent father

argues     specifically        that     J.S.    is        unadoptable         due   to     his

behavioral problems and because he is not currently placed in an

adoptive      home.      He    concedes       that   P.S.     and    H.S.      live       in   a

potential adoptive placement and that their behavioral problems

are manageable.          Respondent mother argues that all three boys

are not likely to be adopted due to their behavioral problems

and the fact that they are living in therapeutic foster homes.

We are not persuaded.

       Once     statutory       grounds        for        termination          have       been

established,      the    trial        court    is    required       to    use       its    own

discretion to “determine whether terminating the parent’s rights

is in the juvenile’s best interest.”                        N.C. Gen. Stat. § 7B-

1110(a) (2013); In re Carr, 116 N.C. App. 403, 407, 448 S.E.2d

299,   301     (1994).         When    determining         whether       it    is    in    the

juvenile’s best interest to terminate the parent’s rights, a

trial court is required to make written findings regarding these

factors:

         (1)    The age of the juvenile.

         (2)    The likelihood of adoption of the juvenile.
                                          -10-
           (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.

N.C. Gen. Stat. § 7B-1110(a).                    “We review the trial court’s

decision to terminate parental rights for abuse of discretion.”

In   re    Anderson,     151   N.C.     App.     94,    98,   564   S.E.2d    599,   602

(2002).      “An abuse of discretion occurs when the trial court’s

ruling is so arbitrary that it could not have been the result of

a reasoned decision.”             Chicora Country Club, Inc. v. Town of

Erwin,     128    N.C.   App     101,    109,     493    S.E.2d     797,    802   (1997)

(internal quotation marks omitted).

      In    its    disposition          order,    the     trial     court    made    the

following pertinent findings of fact:

             5.   That prior to the visits restarting in
             September   of  2013,  all  three   of  the
             juveniles had made significant progress in
             therapy and their behavior at home and at
             school had improved.

             6. . . . Once visits resumed with the
             respondent father and the possibility of
             visits with the respondent mother were
             mentioned, the juveniles regressed to their
                    -11-
former negative behaviors.

. . . .

13. That since the visits were stopped with
the respondent father, [J.S.] is stabilizing
and his violent and angry behaviors have
again decreased.    His behaviors are more
manageable and his grades have improved
after dropping during the time of the
visits.

14.      That   [P.S.]  and   [H.S.]  also
demonstrated an increase in disruptive and
aggressive behaviors . . . during the time
they were visiting with the respondent
father.

. . . .

20.   That both [P.S.] and [H.S]’s grades
suffered during that time period as well,
however since the visitation has stopped . .
. negative behavior has decreased and their
grades have also improved.

21.   That the visits with the respondent
father and the potential visits with the
respondent mother triggered these aggressive
and violent behaviors for the three boys,
and were detrimental to the mental health
and well-being of the three boys.

22.    That the juveniles’ counselor, Mr.
O’Neal, believes . . . the behavior of all
three boys will continue to improve with
continued   therapy  and   staying  in   the
structure of therapeutic foster care for the
time being.

23.   That . . . not one of the boys has
expressed a desire to see their biological
parents or . . . expressed missing their
biological  parents  or  their  biological
                    -12-
family.

24. That [P.S] is 11 years old, [J.S.] is 10
years old, and [H.S.] is 8 years old.    The
juveniles are still young enough to be
successfully adopted.

25.   That while all three juveniles have
mental health and behavioral issues, all
three have demonstrated that with the proper
care and therapy the behaviors can improve
as they have done over the past year and a
half.

26.    That since their time in therapeutic
foster    care,  they  have  become  active
participants in their families and their
behavior     problems    at   school   have
significantly decreased.

27.   That the termination of the parental
rights of the respondent parents will aid in
the accomplishment of the permanent plan for
the juveniles in that it would legally free
the juveniles for adoption.

28.    That a termination of the parental
rights of the respondent parents would
further aid in the permanent plan for the
juveniles by allowing the juveniles to move
forward in their therapy without the worry
or concern about Court proceedings and/or
that they may have to visit with or return
to live with either of the respondent
parents.

29.   That an improvement in the juveniles’
behaviors and ability to bond with and
attach to a pre-adoptive family will aid in
the accomplishment of the permanent plan.

30. . . . All three of the juveniles have
expressed that they have no desire to live
with either of their biological parents.
                    -13-


. . . .

32. That [P.S.] and [H.S.] are very bonded
to their foster parents, the [L. family].
Their foster parents are also bonded to
them. . . .

33.   That the [L. family] are a potential
pre-adoptive placement for the juveniles,
but they have not decided whether or not
they are willing to adopt [P.S.] and [H.S.].
. . .

34.   That [J.S.] is bonded to his current
foster placement, the [W.] family.    [J.S.]
trusts the [W. family] and feels safe with
them.    They are a potential pre-adoptive
placement and have not yet decided whether
or not they are willing to adopt [J.S.]. . .
.

35. That the juveniles by their attachments
and bond formed to their foster families
have demonstrated that they have the ability
to form an attachment to potential adoptive
parents, under appropriate circumstances.

36. That although more care will have to be
put into finding an adoptive home for these
juveniles due to their behavioral issues,
these juveniles are adoptable.

37.   That having found previously that two
grounds   exist   for  the   termination  of
parental rights of the respondent mother and
three grounds for the respondent father by
clear, cogent and convincing evidence it is
in the best interest of each of these three
children that the parental rights of each of
the respondent parents be terminated.
                                        -14-
Respondent father argues that dispositional findings of fact 27,

28, 29, 34, and 37 are not supported by evidence. Respondent

mother argues that dispositional findings of fact numbers 33,

34, and 36 are not supported by evidence.                We disagree.

       Findings of fact 27, 28, 29, and 37 are supported by the

testimony of the juveniles’ long-term counselor whom the court

considered to be an expert witness.             It was his opinion that the

juveniles suffered emotional and physical abuse from respondents

and    that   they   had    no    desire   to   return    to   them.       He    also

testified that these were the most damaged                     juveniles    he had

seen, and if they were reunited with respondents their behaviors

would regress even further.                His October 2013 report to the

court indicated that after family visitation began, the progress

all three juveniles had made in therapy had been “forfeited.”

This    demonstrates       that   the   juveniles    neither      want     nor   are

emotionally or psychologically stable enough to live with either

respondent, and that the permanency of termination will help to

stabilize the juveniles’ severe behaviors so that they are more

likely to be adopted.

       Findings of fact 33 and 34 are supported by the testimony

of both foster parents.           J.S. has been placed with the W. family

for a year, and H.S. and P.S. with the L. family for a year and
                                            -15-
a    half.      Both    placements     are     familiar         with   the    juveniles’

behaviors and highly trained to manage them.

       With respect to finding 36, the DSS case worker who had

worked with the juveniles for two and a half years stated that

they were adoptable because they had shown through their bond to

their foster parents that they are capable of attachment.                              H.S.

and P.S. have only had one foster placement, and J.S. has had

two.     The    juveniles       are   active       in   their    placements      and   are

learning how to behave in a healthy family environment.                            Since

the    juveniles   were     placed     in     their      respective     foster    homes,

their    behaviors       have     improved.             The   juveniles’      therapist

testified that when the juveniles do not visit with respondents

they make significant progress in their foster homes.

       Given the substantial evidence supporting these findings,

we     cannot    agree     that       the     trial       court’s      best    interest

determination was “manifestly unsupported by reason.”                              In re

A.R.H.B., 186 N.C. App. 211, 218, 651 S.E.2d 247, 253 (2007).

Furthermore, the trial court is not required to find that a

child is adoptable before terminating parental rights.                            See In

re Norris, 65 N.C. App. 269, 275, 310 S.E.2d 25, 29 (1983).                             The

trial court did not abuse its discretion in concluding that it

was     in   the       juveniles’      best        interest      to    terminate       the
                                -16-
respondents’ parental rights.     Accordingly, we affirm the trial

court’s order terminating respondents’ parental rights.

                             Conclusion

    Based on the foregoing reasons, we affirm the trial court’s

order terminating respondents’ parental rights.

    AFFIRMED.

    Judges DILLON and DAVIS concur.

    Report per Rule 30(e).
