                                 NO. COA13-502-2

                    NORTH CAROLINA COURT OF APPEALS

                          Filed: 16 September 2014


IN THE MATTER OF:                              Chatham County
     D.C.                                      Nos. 10 JA 46
                                                    10 JT 46


    Appeal by respondent from orders entered 18 April 2012 and

24 January 2013 by Judge Beverly Scarlett in District Court,

Chatham County.     By opinion entered 15 October 2013, this Court

reversed   and   remanded    the       trial    court’s     orders.       By   order

entered on or about 11 June 2014, the North Carolina Supreme

Court remanded to this Court.


    Holcomb & Cabe, LLP, by Carol J. Holcomb and Samantha H.
    Cabe, for appellee Chatham County Department of Social
    Services.

    Parker Poe Adams & Bernstein LLP, by William L. Esser IV,
    for guardian ad litem.

    J. Thomas Diepenbrock, for appellant-respondent-mother.


    STROUD, Judge.


    This   case   comes     to   us     by     order   of   the   North   Carolina

Supreme Court remanding this case to us for reconsideration in

light of In re L.M.T., ___ N.C. ___, 752 S.E.2d 453 (2013).                      For

the following reasons, we affirm.

                                  I.     Background
                                   -2-
    We recite the background and applicable law from our prior

opinion:

                 On 15 March 2011, the Chatham County
           Department of Social Services (“DSS”) filed
           a juvenile petition alleging that Derrick1
           was a neglected and dependent juvenile, and
           on 1 June 2011, the trial court adjudicated
           Derrick a neglected juvenile.           On 18 April
           2012, the trial court changed Derrick’s
           permanent plan to adoption and ordered that
           “[a] Termination of Parental Rights Motion
           shall    be    filed”     [“Permanency      Planning
           Order”]. Respondent filed notice preserving
           her right to appeal the 18 April 2012 order.
           On   24    January     2013,    the    trial    court
           terminated      respondent-mother’s         parental
           rights due to neglect, failure to make
           reasonable progress, and failure to pay a
           reasonable      portion      of     support     [“TPR
           Order.”].        Respondent     appealed     the   24
           January 2013 order.
                 On appeal, respondent contends that the
           trial court erred in its 18 April 2012
           permanency     planning      order     by     ceasing
           reunification efforts without entering the
           necessary findings of fact required by North
           Carolina General Statute § 7B-507(b)(1).
           DSS argues that the trial court never
           ordered    the     cessation     of   reunification
           efforts and, therefore, was not required to
           make findings under North Carolina General
           Statute § 7B-507(b). . . . Moreover, the
           trial court here changed the permanent plan
           to adoption, and respondent-mother properly
           preserved her right to appeal the cessation
           of reunification efforts pursuant to N.C.
           Gen.    Stat.    §    7B–507(c).        This    Court
           determined in In re A.P.W. that an order
           which directs the filing of a petition to

1
  A pseudonym will be used to protect the identity of the child
involved.
                                     -3-
          terminate parental rights and changes the
          permanent plan to adoption has implicitly
          ordered   the   cessation  of   reunification
          efforts. ___ N.C. App. ___, ___, 741 S.E.2d
          388, 391 (“As in J.N.S., the trial court in
          the instant case directed DSS to file a
          petition   to   terminate  parental   rights.
          Moreover, the trial court here changed the
          permanent plan to adoption, and respondent-
          mother properly preserved her right to
          appeal   the   cessation  of    reunification
          efforts pursuant to N.C. Gen. Stat. § 7B–
          507(c). Based on the foregoing, we hold that
          the trial court’s 21 June 2011 order
          implicitly ceased reunification efforts, and
          we reject DSS’s argument for dismissal.”),
          disc. review denied, ___ N.C. ___, ___
          S.E.2d ___ (2013).

In re D.C., ___ N.C. App. ___, 752 S.E.2d 257 (No. COA13-502)

(Oct. 15, 2013) (unpublished) (heading omitted).

                II.   Permanency Planning Order

    Respondent    argues    that     “the   trial    court    erred   when   it

entered   a   permanency    planning        review    order    changing      the

permanent plan to adoption because the order effectively ceased

reunification   efforts    without    including      the   findings   of   fact

required by statute[.]”     (Original in all caps.)

               “This Court reviews an order that
          ceases reunification efforts to determine
          whether the trial court made appropriate
          findings, whether the findings are based
          upon credible evidence, whether the findings
          of   fact    support   the    trial    court’s
          conclusions, and whether the trial court
          abused   its  discretion   with   respect   to
          disposition.”    In re C.M., 183 N.C. App.
                                 -4-
          207, 213, 644 S.E.2d 588, 594 (2007).
               North Carolina General Statute §          7B-
          507(b) provides:
               In any order placing a juvenile in
               the     custody      or       placement
               responsibility      of     a     county
               department of social services, . .
               .   the   court   may    direct    that
               reasonable efforts to eliminate
               the need for placement of the
               juvenile shall not be required or
               shall cease if the court makes
               written findings of fact that:
               (1) Such efforts clearly would be
                    futile      or       would      be
                    inconsistent with       the
                    juvenile’s     health,     safety,
                    and    need     for     a    safe,
                    permanent     home     within    a
                          reasonable      period    of
                    time[.]
         N.C. Gen. Stat. § 7B-507(b)(1) (2011).

In re D.C., ___ N.C. App. ___, 752 S.E.2d 257 (No. COA13-502)

(Oct. 15, 2013) (unpublished).

    The Supreme Court has directed that our reconsideration be

directed by the requirements of L.M.T., which states that

         [s]trict adherence to this statute [North
         Carolina   General    Statute   §   7B-507(b),]
         ensures that the trial court fulfills the
         aspirations of the Juvenile Code by allowing
         our appellate courts to conduct a thorough
         review of the order. While trial courts are
         advised that use of the actual statutory
         language would be the best practice, the
         statute   does    not    demand   a    verbatim
         recitation of its language as was required
         by the Court of Appeals in this case. Put
         differently, the order must make clear that
         the trial court considered the evidence in
                                        -5-
            light of whether reunification “would be
            futile or would be inconsistent with the
            juvenile’s health, safety, and need for a
            safe, permanent home within a reasonable
            period of time.” The trial court’s written
            findings   must    address   the   statute’s
            concerns, but need not quote its exact
            language. On the other hand, use of the
            precise statutory language will not remedy a
            lack of supporting evidence for the trial
            court’s order.

___ N.C. ___, ___, 752 S.E.2d 453, 455 (2013).                       The Supreme

Court   further     clarified    that     the    order   ceasing   reunification

should be considered together with the termination of parental

rights order in cases such as this; in other words, either order

standing alone or the orders as read together can be enough to

satisfy the language of North Carolina General Statute § 7B-

507(b).    Id. at ___, 752 S.E.2d at 456-57.

       The guardian ad litem brief to this Court acknowledged that

the    Permanency     Planning    Order    was    deficient     because   of   its

failure   to   make    the    findings     of    fact    as   required   by   North

Carolina General Statute § 7B-507(b).               In our prior opinion, we

agreed and reversed and remanded “to the trial court for further

proceedings.”        In re D.C., ___ N.C. App. ___, 752 S.E.2d 257

(No.    COA13-502)    (Oct.     15,   2013)     (unpublished)      (citation    and

quotation marks omitted).         Now that we reconsider the Permanency

Planning Order in light of our Supreme Court’s directives in
                                           -6-
L.M.T.,    the    Permanency        Planning      Order     standing      alone    remains

deficient, but we must reconsider it in conjunction with the TPR

Order.

    The 18 April 2012 Permanency Planning Order that ceased

reunification made general findings regarding respondent’s lack

of complete compliance with her drug treatment program.                                 The

trial     court       also   made    numerous         positive     findings       of   fact

regarding respondent’s completion of parent-child therapy, her

strong    bond    with       Derrick,     her    attendance        of   her    individual

therapy     sessions         including     progress         with    her       goals,    her

enrollment       in    college,     her   maintenance        of    weekly     visits    and

regular phone calls with Derrick wherein her interactions were

“positive    and       appropriate[,]”          and   her   claimed       attendance     to

substance abuse treatment. In this regard, as far as we can tell

from the trial court’s orders, this situation was different from

that presented by L.M.T., in which even the permanency planning

order alone showed that the respondent continued to have a drug

problem that had worsened over time, lived in an environment

involving serious domestic violence, and had also received an

eviction notice from her current home.                      Id. at ___, 752 S.E.2d

at 455-56.        The trial court found in the “cease reunification

order” in L.M.T. that
                                  -7-
         the Respondent Mother was sinking deeper and
         deeper into an abyss of domestic violence
         and drug abuse all the while covering it up
         and refusing to acknowledge the fact of its
         existence in order that the Court, the
         Department, the Guardian ad Litem and others
         surrounding her could assist her and help
         the juveniles. The deception of the Court
         during this process is bad enough, but the
         Respondent Mother has completely let her
         children down.

Id. at ___, 752 S.E.2d at 455-56 (emphasis added).

    In L.M.T., the Supreme Court determined that the “cease

reunification   order”    alone   was   sufficient   to   satisfy   the

requirements of North Carolina General Statute § 7B-507(b), but

went on to address the termination of parental rights order as

well.   Id. at ___, 752 S.E.2d at 455-58.            Specifically, the

Supreme Court stated:

              Even if the cease reunification order
         standing alone had been insufficient, that
         would not end the appellate court’s inquiry.
         Parents may seek appellate review of cease
         reunification   orders   only   in   limited
         circumstances. In this case, respondent
         appealed under subsection 7B–1001(a)(5)(a),
         which provides that

                a.   The Court of Appeals shall review
                     [an] order [entered under section
                     7B–507] to cease reunification
                     together with an appeal of the
                     termination of parental rights
                     order if all of the following
         apply:
                     1.    A motion or petition to
                           terminate the parent’s rights
                                             -8-
                                    is heard and granted.
                            2.      The     order      terminating
           parental                      rights is appealed in a
           proper                        and timely manner.
                            3.      The order to cease
                                    reunification is identified
           as                       an issue in the record on
                                    appeal of the termination of
                                    parental rights.

           Id. § 7B–1001(a)(5) (2011). In other words,
           if a termination of parental rights order is
           entered,    the   appeal    of   the   cease
           reunification order is combined with the
           appeal of the termination order.

Id. at ___, 752 S.E.2d at 456.

    As     noted          above,     the        Permanency       Planning        Order     is

insufficient,      standing        alone,       to   satisfy     the     requirements      of

North Carolina General Statute § 7B-507(b)(1).                           Accordingly, as

directed by L.M.T., we turn to the TPR Order to see if the

findings     of    fact      in     that     order      in     conjunction       with     the

Permanency    Planning        Order       which      ordered    a   permanent      plan    of

adoption     would       satisfy     the        requirements        of   North     Carolina

General Statute § 7B-507(b)(1).                      See id. at ___ 752 S.E.2d at

456-57.      In    the     TPR     Order,    the     trial     court     made    additional

detailed findings of fact regarding respondent’s drug abuse and

failures   of      treatment,        going      back    to     February    of     2010    and

continuing    up     to    the     time    of    the   hearing      on   termination      of

parental rights. It is apparent, reading the Permanency Planning
                                                -9-
Order and TPR Order together, that respondent continued in her

pattern     of      attempts       at    recovery        from    her    substance          abuse

problems       and     relapsing         into      abuse.       Respondent          does     not

challenge        the      sufficiency         of   the      evidence    to    support        the

findings       of    fact    in    either       order.        Based    upon    all    of     the

findings,      considering         the       two   orders    together,       “the    order[s]

embrace[] the substance of the statutory provisions requiring

findings of fact that further reunification efforts would be

futile    or     would      be    inconsistent        with    the     juvenile’s      health,

safety, and need for a safe, permanent home within a reasonable

period of time.”            Id. at ___, 752 S.E.2d at 456-57 (citation and

quotation marks omitted).

      In addition, we note that the Permanency Planning Order did

not   order         DSS     to    cease        its    reunification          efforts        with

respondent,          despite changing the permanent plan to adoption;

thus, respondent had the benefit of continued access to the

services and assistance of DSS in attempting to correct the

conditions which led to the child’s removal even though the

permanent plan had been changed to adoption. In this situation,

the deficiencies of the Permanency Planning Order did not impair

respondent’s         ability      to     improve      her    situation       prior    to    the

hearing    on       termination         of    parental      rights.      As    such,        this
                                 -10-
argument is overruled.

                            III. TPR Order

       Respondent also contends that the trial court “abused its

discretion by concluding that the best interest of the minor

child would be served by termination of the respondent-mother’s

parental rights.”    (Original in all caps.)      Respondent does not

challenge the grounds for termination but solely whether the

trial   court   properly   considered   whether   termination   of   her

parental rights was in Derrick’s best interests.        We review the

trial court’s determination of what is in the best interests of

the child for abuse of discretion.        Id. at ___, 752 S.E.2d at

457.

       North Carolina General Statute § 7B-1110(a) provides,

           After an adjudication that one or more
           grounds for terminating a parent’s rights
           exist, the court shall determine whether
           terminating the parent’s rights is in the
           juvenile's best interest. The court may
           consider any evidence, including hearsay
           evidence as defined in G.S. 8C-1, Rule 801,
           that the court finds to be relevant,
           reliable, and necessary to determine the
           best interests of the juvenile. In each
           case, the court shall consider the following
           criteria and make written findings regarding
           the following that are relevant:
           (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
                              -11-
              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) (2013).    Defendant contends that

the trial court failed to properly consider and make findings of

fact regarding factors 3, 4, and 5 in North Carolina General

Statute § 7B-1110(a).

      As to “[w]hether the termination of parental rights will

aid

in the accomplishment of the permanent plan[,]” id., for Derrick

the trial court found:

          b.   Termination of Respondent’s parental
               rights is necessary to implement the
               permanent plan of adoption.

          c.   Termination of Parental Rights is the
               only barrier to the adoption of the
               child.

As to “[t]he bond between the juvenile and the parent[,]” while

the trial court may not have used the exact word “bond” it did

find that Derrick “is approximately five and one-half (5 ½)

years old and has been in foster care for over two years[,]”

indicating that Derrick could not have had a strong bond with

respondent as he would barely, if at all, have remembered her as
                                         -12-
his   primary    guardian.         The    trial     court    further       found   that

Derrick   “was       happy   to   see    his    siblings      and    Mr.    Johnson[,

prospective adoptive father,] and did not want to leave when the

visit ended” indicating that Derrick’s primary bond is with the

prospective adoptive family and not respondent.                       As to “[t]he

quality   of     the    relationship       between     the    juvenile       and    the

proposed adoptive parent[,]” id., the trial court found that the

prospective adoptive parents “are willing to adopt [Derrick] and

have him as a part of their large and loving family.”                          As the

trial court considered the appropriate factors, we conclude that

the trial court did not abuse its discretion in determining

termination     of     respondent’s      parental    rights    was     in   Derrick’s

best interests.        This argument is overruled.

                                  IV.    Conclusion

      For the foregoing reasons, we affirm both the Permanency

Planning Order and the TPR Order.

      AFFIRMED.

      Judges MCGEE and BRYANT concur.
