In re B.E., 375 N.C. 730 (2020)

  • Facts: The three children were adjudicated neglected and dependent in an underlying juvenile action. Mother and father were ordered to comply with their case plans. Eventually, DSS filed a TPR motion, and the TPR was granted on the grounds of neglect, failure to make reasonable progress, and dependency.  The court found it was in 2 of the 3 children’s best interests to TPR (resulting in the TPR of the one child to be dismissed). Respondent father challenges the best interests determination at disposition for his 15-year-old son who expressed a desire to not be adopted.
  • Standard of review for the dispositional stage regarding best interests is whether the trial court abused its discretion. Dispositional findings must be supported by competent evidence.
  • Father argues the court failed to protect the juvenile’s statutory due process rights by not providing the juvenile with notice of the hearing and giving him an opportunity to attend the hearing and testify. “Assuming arguendo that respondent-father has standing to assert Billy’s procedural rights on appeal, we conclude he has failed to preserve this issue for our review.” Sl.Op. at 25. By characterizing the claim as “statutory due process,” father concedes the statute does not explicitly grant all the due process rights he is arguing. As such, the issue must have been preserved at trial. Some statutes governing abuse, neglect, and dependency proceedings give certain procedural rights to juvenile’s 12 and older, in addition to the right to GAL representation. G.S. 7B-1110 does not provide for notice of and the right to attend and testify at the dispositional hearing even though it expressly provides for the juvenile who is 12 or older the right to be served with a copy of the TPR order.
  • A child who is 12 or older must consent to their adoption unless the court waives the consent based on a finding that it is not in the child’s best interests. G.S. 48-3-601(1); 48-3-603(b)(2). The trial court in the TPR waived the consent requirement. By considering the GAL’s and DSS social worker’s testimony about the juvenile’s preference and understanding and by finding it was not in the juvenile’s best interest to consent to his adoption, the court considered the juvenile’s preference for guardianship. The court has the authority to determine the proper weight to give the evidence.
  • There was no abuse of discretion.
Termination of Parental Rights
Best Interests Findings
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