In re A.K.O., 375 N.C. 698 (2020)
Held:
Affirmed in Part
Remanded
Vacated in Part
- Facts: The two juveniles were adjudicated neglected and dependent. As part of achieving a permanent plan in that underlying action, DSS filed a TPR petition that was granted. Respondents appeal, challenging the best interests of the child determination. At the time of the appellate opinion, the juveniles were 17 and 9, and the analysis differs based on the age of the juveniles. For the older juvenile, the GAL recommended guardianship over adoption.
- G.S. 7B-1110(a) identifies factors the court must consider at disposition but does not require written findings of each factor, “particularly when there was no conflict in the evidence regarding those factors.” Sl.Op. at 10. Because the evidence that the older juvenile was bonded with his parents, did not wish to be adopted, and would not give his consent to adoption making it unlikely for him to be adopted was uncontested such that no written findings of those factors were required. Additionally, some findings considered those factors and the failure to use the exact statutory language is not error.
- One factor is whether the TPR will aid in the achieving the permanent plan. The concurrent plans here were adoption and guardianship. Although TPR aids in achieving adoption, it is not legally necessary for a plan of guardianship. A finding that TPR was necessary to achieve the permanent plan of by legally freeing the juvenile for adoption or guardianship was incorrect. This appears to be a mistake of law. The proper remedy is remand for reconsideration of guardianship as a dispositional alternative.
- While a TPR would aid in achieving the plan of adoption, “the trial court should not place undue emphasis on this statutory factor when [the juvenile] will not consent to adoption and is a much older juvenile.” Sl.Op. at 11. Here, the juvenile provided a well-reasoned objection to adoption in favor of guardianship, and he is approaching the age of majority. “As a juvenile ages, the trial court should afford more weight to his wishes.” Sl.Op. at 12.
- For the sibling who is significantly younger, the same considerations are not applicable. Her consent is not required for adoption and she is in need of a permanent plan at the earliest age possible.
- Although a written finding on the undisputed evidence about the younger sibling's bond with her parents was not required, “even assuming arguendo, however, that this trial court erred by failing to make a finding regarding this dispositional factor, we would decline to find reversible error because it would only delay permanence for [the juvenile].” Sl.Op. at 14.
Category:
Termination of Parental RightsStage:
DispositionTopic:
Best Interests Findings