IN MATTER OF D.M., 196 N.C. App. 789 (2009)

IN THE MATTER OF: D.M. and K.M.

No. COA09-27.North Carolina Court of Appeals.
Filed May 5, 2009.

Forsyth County Nos. 04 JT 08, 04 JT 09.

Appeal by respondent from order entered 15 October 2008 by Judge Lawrence J. Fine in District Court, Forsyth County. Heard in the Court of Appeals 13 April 2009.

Assistant County Attorney Twanda M. Staley, for petitioner-appellee, Forsyth County Dept. of Social Services.
WOMBLE CARLYLE SANDRIDGE RICE, by Murray C. Greason, III, for appellee guardian ad litem.
Duncan B. McCormick, for respondent-appellant, mother.

STROUD, Judge.

Respondent appeals from order terminating her parental rights to her children, D.M. and K.M. For the following reasons, we affirm.

On May 5, 2008, DSS filed the present petition to terminate respondent’s parental rights. In its order terminating respondent’s parental rights, the trial court made the following pertinent findings of fact:

3. K.M. was born [in] 1997, in Forsyth County, North Carolina. D.M. was born [in] 2005, in Forsyth County, North Carolina. They both reside with their older sister, [A.M.] under the supervision, direction, and custody of the Forsyth County Department of Social Services. The juveniles also resided with [A.M.] some time prior to coming into DSS custody.
4. On January 15, 2003, the Forsyth County Department of Social Services was granted non-secure custody of the minor children when a juvenile petition was filed alleging the juveniles to be neglected. The juveniles have remained continuously in the custody of Forsyth County Department of Social Services since January 15, 2003.
. . . .
8. The juveniles were adjudicated dependent juveniles on June 13, 2003.
9. At the adjudication hearing [respondent] was ordered to do the following if she wished to be reunited with her children: attend WISH and follow through with all recommendations; and maintain suitable housing for herself and her children. At the September 12, 2003, review hearing [respondent] also was ordered to successfully complete parenting classes at SCAN and present a certificate of completion to DSS and the Court.
10. [Respondent] did complete the parenting classes at SCAN on April 13, 2008, but she did not complete WISH. She had an intake appointment on March 5, 2008, and did not return until April 28, 2008, when she submitted to an observed urine drug test which came back positive for cocaine. The level of cocaine detected was over 5000. She was to start group sessions April 24, 2008, and did not show up for the session. WISH recommended that [respondent] have comprehensive outpatient treatment for at least sixteen weeks. She indicated that she did not want to do that. On September 2, 2008, [respondent] called WISH and spoke with the director. She was told to call back the next day but she did not call back.
11. [Respondent] admitted to using cocaine as recently as August 20, 2008, and she admits she has a drug problem.
12. According to [respondent’s] testimony, she had four years of stable housing prior to this year. [Respondent] had three changes in housing since the TPR Petition was filed on May 5, 2008.
13. [Respondent] currently resides with Larry [F.], the father of [K]. His parental rights were terminated in October 2004. [Respondent] states that [Larry F.] is her sole source of financial support.
14. Since the juveniles have been in DSS custody [respondent’s] visits have been sporadic. For the last twelve to fifteen months, visitation has been entirely dependent on [A.M.] seeking out [respondent] when the juveniles wanted to see her. . . .
15. [Respondent] has given gifts to the juveniles and visited during the Christmas Holidays but she has not visited the girls for their birthdays. [Respondent] has not provided financial support for the juveniles but she has not worked in the last five years. She has provided food and clothing on one or two occasions over the last five years.
16. [Respondent] has no telephone but she calls the juveniles when she can.
17. The juveniles have been in DSS custody continuously for approximately five (5) years.
18. There has been neglect of the juveniles on the part of [respondent] despite some efforts. She failed to receive substance abuse treatment and refused to submit to substance abuse treatment. Most recently, she has been unable to maintain stable housing.
19. [Respondent] neglected the juveniles pursuant to 7B-1111(a)(1) in that she failed to correct the conditions that brought her children into DSS custody. She has not made meaningful progress in eliminating the conditions that led to the removal of her children.
20. [Respondent] is in basically the same position as she was five years ago when her children came into DSS custody. There is still admitted drug use, no income, she does not have her own housing, and was recently evicted. She is not in any better position to provide permanence for her children.
21. Pursuant to N.C.G.S. 7B-1111(a)(2), [respondent] willfully left her children in the custody of the DSS for more than twelve (12) months without showing reasonable progress in correcting the conditions which led to the removal of the children. As of the date of the TPR hearing, [respondent] had not made reasonable progress, under the circumstances, in correcting the conditions which led to the removal of her children.
The children have been in the custody of DSS continuously since on or about January 15, 2003. Since the children came into the custody of DSS, [respondent] has not complied with court orders or with the DSS case plan.
22. The GAL submitted a report recommending that termination of parental rights is in the best interest of the juveniles. The report also stated that adoption of the juveniles by their respective sister is in the juveniles’ best interest.
23. The juveniles are placed with their sister, [A.M.] [A.M.] is not employed but she is a full-time student at Carolina Beauty College. The juveniles are well cared for and they are doing well in school. All of their needs are being met. The juveniles get along well with [L.], [A.M.]’s daughter. [A.M.] wants to adopt the juveniles and she told the Court that she will take care of the juveniles regardless of the Court’s ruling on the termination. A.M. has demonstrated that she will take the juveniles to see their mother when they want to see her and she goes out of her way to do this.
. . . .
25. It is in the juvenile[s’] best interest to terminate [respondent’s] parental rights.
Based upon the findings of fact, the trial court concluded grounds for termination existed under N.C. Gen. Stat. § 7B-1111(a)(1) and (2) for neglect and willfully leaving her children in the custody of DSS for more than twelve months without showing reasonable progress. The trial court further concluded that termination of respondent’s parental rights would be in the best interests of the children. From the order entered, respondent appeals and challenges the determination that termination of respondent’s parental rights was in the best interests of the children.

Respondent contends that the trial court erred in concluding that it was in the best interests of the children to terminate respondent’s parental rights. In finding of fact 24 the trial court determined:

24. In determining best interest, the Court stated that the only difference between adoption and guardianship is financial. If [respondent’s] parental rights are terminated and [A.M.] adopts the juveniles she will be eligible for the adoption subsidy and other post adoption services that include funds for healthcare, counseling, therapeutic services, and a support system until the juveniles reach the age of eighteen.

Respondent contends that “the trial court abused its discretion by terminating the mother’s parental rights based on the availability of adoption assistance benefits and the purported lack of availability of guardianship assistance benefits.” Respondent further contends that [p]rior to the entry of the order, federal legislation was enacted authorizing States to provide guardianship assistance benefits.

. . . .
The Act recognizes that legal guardianship with a relative is often in the best interests of a child and provides for kinship assistance payments that would be approximately the same as the payments that would be made if the custodian adopted the child. By providing assistance to guardians, the Act ensures that termination actions are not a necessary prerequisite to a relative’s receipt of the financial assistance needed to ensure the success of the permanent plan.
. . . The trial court terminated the mother’s parental rights based on a finding that [A.M.] would be eligible to receive adoption assistance payments and that she would not be eligible for an equivalent amount of benefits if she was appointed as the children’s permanent guardian.

In reviewing respondent’s appeal, we note that a trial court’s findings of fact are binding on appeal when supported by competent evidence, “even though there may be evidence to the contrary.” In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988) (citation omitted). Further, a trial court’s determination that termination of parental rights is in the best interests of the child will not be disturbed absent an abuse of discretion. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001) (citation omitted).

Once a trial court has determined that at least one ground exists to terminate parental rights, the court decides whether termination is in the best interests of the child. N.C. Gen. Stat. § 7B-1110(a) (2007). In determining whether terminating the parent’s rights is in the juvenile’s best interests, the court shall consider the following:

(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.

N.C. Gen. Stat. § 7B-1110(a).

Here, the trial court made findings of fact addressing each of subsections (1) through (5) of N.C. Gen. Stat. § 7B-1110(a), which are not challenged by respondent. The trial court found that: (1) the children were born in 1997 and 2005, making them approximately eleven and three years old, respectively, at the time of the termination hearing; (2) A.M. wanted to adopt the children; (3) living with A.M., the children are “well cared for and they are doing well in school. All of their needs are being met[;]” (4) “[A.M.] will take the juveniles to see [respondent] when they request it and the juveniles enjoy those visits[;]” however, respondent’s “visits have been sporadic. For the last twelve to fifteen months, visitation has been entirely dependent on [A.M.] seeking out [respondent] when the juveniles wanted to see her.” Furthermore, respondent “has not visited the girls for their birthdays[;]” (5) “The juveniles get along well with [L., A.M.’s] daughter. [A.M.] wants to adopt the juveniles and she told the Court that she will take care of the juveniles regardless of the Court’s ruling on the termination.”

Finding of fact 24 regarding the adoption subsidy would fall under subsection (6) of N.C. Gen. Stat. § 7B-1110(a), “[a]ny relevant consideration.” N.C. Gen. Stat. § 7B-1110(a)(6). Respondent challenges the trial court’s reliance on the adoption subsidy as a factor in determining the children’s best interests. However, even if we were to assume that finding of fact 24 was in error, we conclude that the remaining unchallenged findings of fact address each of the factors in N.C. Gen. Stat. § 7B-1110(a), and thus, the trial court did not abuse its discretion in determining that termination of respondent’s parental rights was in the best interests of the children. See Nationwide Mut. Fire Ins. Co. v. Bourlon, 172 N.C. App. 595, 601, 617 S.E.2d 40, 45
(2005), aff’d per curiam, 360 N.C. 356, 625 S.E.2d 779 (2006) (citations omitted) (“To demonstrate an abuse of discretion, the appellant must show that the trial court’s ruling was manifestly unsupported by reason, or could not be the product of a reasoned decision.”); Black Horse Run Ppty. Owners Assoc. v. Kaleel, 88 N.C. App. 83, 86, 362 S.E.2d 619, 622
(1987) (citations omitted) (“Where there are sufficient findings of fact based on competent evidence to support the trial court’s conclusions of law, the judgment will not be disturbed because of other erroneous findings which do not affect the conclusions.”), cert denied, 321 N.C. 742, 366 S.E.2d 856 (1988); see also In re D.D.F., 187 N.C. App. 388, 398, 654 S.E.2d 1, 7 (2007) (“Respondent has not argued his remaining assignments of error and they are therefore deemed abandoned. N.C.R. App. P. 28(b)(6).”); Pascoe v. Pascoe, 183 N.C. App. 648, 650, 645 S.E.2d 156, 157 (2007) (citation and quotation marks omitted) (“Findings of fact to which no error is assigned are presumed to be supported by competent evidence and are binding on appeal.”) We therefore affirm the trial court’s order terminating the respondent’s parental rights.

AFFIRMED.

Judges JACKSON and STEPHENS concur.

Report per Rule 30(e).