Opinion
No. COA10-1326
Filed 5 April 2011 This case not for publication
Appeal by Respondents from orders entered 29 June 2010 by Judge Patricia Kaufmann Young in Buncombe County District Court. Heard in the Court of Appeals 21 March 2011.
Charlotte W. Nallan for Petitioner-appellee Buncombe County Department of Social Services. Michael E. Casterline for Respondent-appellant mother. Appellate Defender Staples Hughes, by Assistant Appellate Defender J. Lee Gilliam, for Respondent-appellant father. M. Carridy Bender for Guardian ad Litem.
Buncombe County Nos. 08 JT 416, 417.
Respondent-mother and Respondent-father (collectively, "Respondents") appeal from the trial court's order terminating their respective parental rights to daughters G.J.C. ("Grace") and B.G.C. ("Brooke"). After careful review, we affirm.
Pseudonyms are used to protect the identity of the juveniles and for ease of reading.
The Buncombe County Department of Social Services ("DSS') became involved with Respondent-mother after receiving a Child Protective Services ("CPS") report on 1 December 2007 alleging that Respondent-mother's boyfriend, Brett, hit and attempted to choke Respondent-mother in the presence of the minor children. The report also alleged that Brett threatened Respondent-mother and abused alcohol and drugs. Social worker Margaret Taylor investigated the reports, and Respondent-mother admitted the aforementioned occurrences involving Brett. On 4 December 2007, Respondent-mother took out a domestic violence protective order against Brett, but it was dismissed on 13 December 2007 because Respondent-mother failed to appear for the hearing.
Names of individuals involved in this case have also been changed to pseudonyms.
DSS continued to receive CPS reports involving the family. The reports alleged that Respondent-mother also abused drugs and alcohol, "[drew] guns on people" and had recently engaged in a violent fight with an ex-boyfriend. Additionally, the reports alleged that Brooke and Grace did not have cribs, trash and clothing were strewn around the house, and that Brooke had a diaper rash and poor hygiene.
On 8 December 2007, Ms. Taylor learned that Respondent-mother had violated a safety agreement by allowing the minor children to be in the presence of Brett. Therefore, the minor children were placed in a kinship placement with their maternal grandmother, Denise. On 28 February 2008, the case was transferred to a new social worker, Tunya Dowdell-Jackson. After Ms. Dowdell-Jackson received the case, Respondent-mother entered into another safety agreement with DSS, agreeing to participate in domestic violence counseling through a program called Helpmate, obtain a substance abuse assessment, obtain a mental health assessment, and participate in intensive parenting classes.
Pseudonyms have also been used for other family members.
Ms. Dowdell-Jackson received updates from the minor children's daycare provider and learned that their condition had not improved while in Denise's care. The minor children continued to have poor hygiene, diaper rashes, and frequent viral infections. Additionally, Denise failed to cooperate with some of DSS's directives and allegedly sabotaged Respondent-mother's ability to reunify with her children. Based on the foregoing, Grace and Brooke were removed from Denise's care on 15 October 2008. Thereafter, the minor children were placed in a series of kinship arrangements.
On 9 December 2008, DSS filed petitions alleging that Grace and Brooke were neglected. The petitions cite DSS's involvement with the family since December 2007. Additionally, the petition alleged that Respondent-mother had significant cognitive delays, a sleep disorder, and bipolar disorder. According to the petition, neither Respondent-mother nor her boyfriend Brett had made any progress in addressing substance abuse and domestic violence, and Respondent-mother had only participated in the Helpmate program and mental health treatment sporadically. By the time of the adjudication, Respondent-mother denied the allegations that Brett hit and choked her.
At the time the petitions were filed, Respondent-father was in prison, and the minor children's paternity had not been established. DNA testing later confirmed that Respondent-father was the biological father of Grace and Brooke.
On 7 May 2009, the trial court entered orders adjudicating Grace and Brooke neglected based on the stipulation of Respondent-mother and findings of fact which addressed a majority of the allegations contained in the petitions. In disposition orders, the trial court continued the minor childrens' kinship placement. The trial court implemented a permanent plan of reunification with Respondent-mother and ordered her to comply with several directives. A month after the adjudication orders were entered, the trial court gave DSS custody of the children, and DSS placed them in foster care.
On 22 July 2009, the trial court conducted a permanency planning hearing, during which it relieved DSS of reunification efforts with Respondent-mother and changed the permanent plan for the minor children to adoption. Neither Respondent-mother nor Brett had made any progress in complying with court-ordered services, and at the hearing, Respondent-mother admitted that she and Brett had married a few weeks earlier. Respondent-mother had married Brett despite warnings that her relationship with Brett was her greatest barrier to reunification with her children. However, Respondent-father was still incarcerated and did not attend the hearing.
Respondent-father did attend a review hearing on 12 August 2009, despite being incarcerated. Respondent-father claimed that his projected release date was 2012 or 2013. He stated that he wished to develop a relationship with his children and requested guardianship as a permanent plan. Nevertheless, the trial court maintained a permanent plan of adoption.
On or about 18 September 2009, DSS filed petitions to terminate Respondents' parental rights to Grace and Brooke. DSS alleged the following grounds for termination as to both parents: (1) neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1); and (2) willfully leaving the juveniles in foster care for more than twelve months without showing reasonable progress to correct the conditions that led to removal pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). DSS alleged dependency as an additional ground for termination against Respondent-mother, pursuant to N.C. Gen. Stat. § 7B-1111(a)(6). As to Respondent-father, DSS also alleged (1) willful abandonment pursuant to N.C. Gen. Stat. § 7B-1111(a)(7) and (2) failure to legitimate pursuant to N.C. Gen. Stat. § 7B-1111(a)(5).
The trial court conducted a termination hearing over the course of several days in April and June 2010. Following the hearing, the trial court entered two orders on 29 June 2010 terminating Respondents' parental rights to Grace and Brooke. The trial court found the existence of neglect and dependency against Respondent-mother and neglect and failure to legitimate against Respondent-father. The trial court dismissed the remaining grounds alleged against Respondents. The trial court then determined that it was in the minor children's best interests to terminate Respondents' parental rights. From this order, Respondents appeal. Further pertinent facts will be developed below.
I.
First, we address Respondent-father's challenges to the adjudicatory portion of the trial court's order. Pursuant to N.C. Gen. Stat. § 7B-1111(a) (2009), a trial court may terminate parental rights upon a finding of one of the ten enumerated grounds. "So long as the findings of fact support a conclusion [that one of the enumerated grounds exists] the order terminating parental rights must be affirmed." In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) (internal citation omitted). Although Respondent-father challenges both grounds for termination, "[a] single ground . . . is sufficient to support an order terminating parental rights." In re J.M.W., 179 N.C. App. 788, 789, 635 S.E.2d 916, 917 (2006). Therefore, if we determine that the findings of fact support one of the grounds, we need not review the other ground. See Humphrey, 156 N.C. App. at 540, 577 S.E.2d at 426.
On appeal, we review the trial court's orders to determine "whether the trial court's findings of fact were based on clear, cogent, and convincing evidence, and whether those findings of fact support a conclusion that parental termination should occur[.]" In re Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393, 395 (1996) (citation omitted). We initially note that Respondent-father has not challenged any findings of fact as lacking in evidentiary support. Therefore, the findings of fact are presumed to be supported by competent evidence and are binding on appeal. See In re J.D.S., 170 N.C. App. 244, 252, 612 S.E.2d 350, 355 (2005); see also In re M.D., ___ N.C. App. ___, ___, 682 S.E.2d 780, 785 (2009) ("Respondent-Father has not challenged any of the above findings of fact made by the trial court as lacking adequate evidentiary support. As a result, these findings of fact are deemed to be supported by sufficient evidence and are binding on appeal.").
Here, the trial court concluded that termination of Respondent-father's parental rights was justified based on the existence of neglect. North Carolina General Statute § 7B-1111 (a)(1) lists neglect as one of the grounds for terminating parental rights and provides, in pertinent part:
(a) The court may terminate the parental rights upon a finding of one or more of the following:
(1) The parent has abused or neglected the juvenile. The juvenile shall be deemed to be . . . neglected if the court finds the juvenile to be . . . a neglected juvenile within the meaning of G.S. 7B-101.
N.C. Gen. Stat. § 7B-1111(a)(1) (2009). Neglect, in turn, is defined as follows:
Neglected juvenile. C A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2009).
However, when the child is not in the custody of the parents at the time of the termination hearing, as is the case here, "the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect." In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (citing In re Pierce, 146 N.C. App. 641, 651, 554 S.E.2d 25, 31 (2001), aff'd, 356 N.C. 68, 565 S.E.2d 81 (2002)). Because the determinative factor is the parent's ability to care for the child at the time of the hearing, we previously have explained that "requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible." Id. at 286, 576 S.E.2d at 407 (citing In re Ballard, 311 N.C. 708, 714, 319 S.E.2d 227, 232 (1984)). "Thus, the trial court must also consider evidence of changed conditions[.]" Id. The trial court may then "find that grounds for termination exist upon a showing of a history of neglect by the parent and the probability of a repetition of neglect.'" In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (quoting Shermer, 156 N.C. App. at 286, 576 S.E.2d at 407).
Here, the trial court made the following findings of fact pertinent to the neglect ground alleged against Respondent-father:
This set of findings is identical in both the order pertaining to Grace and the order pertaining to Brooke.
109. The Respondent Father was convicted on February 6, 2008 of Robbery with a Dangerous Weapon date of offense April 7, 2007; Aid and Abet Armed Robbery date of offense April 23, 2007; Larceny After Break/Enter date of offense March 28, 2007; Attempted First Degree Arson date of offense July 1, 2007; First Degree Burglary date of offense July 1, 2007; Burning Personal Property date of offense July 1, 2007; Burning Personal Property date of offense July 1, 2007.
110. The Respondent Father received an active sentence of 84 to 110 months. . . . The projected release date is June 16, 2013 if he receives gain time, if no gain time his projected release date is July 29, 2015.
111. At the time of the commission of these offenses, the minor child [Grace] was born. The Respondent Father last saw [Grace] in June, 2007 prior to going into custody this last time. That [sic] Respondent father willfully chose to go on a crime spree from March 2007 until July 2007. The Respondent father knew or should have known that his criminal behavior would, and did in fact; jeopardize his ability to provide care, supervision or discipline to the minor child.
112. The Court has considered changed circumstances and the probability of neglect and the Court finds by clear, cogent and convincing evidence a probability of repetition of neglect if the minor children were returned to the Respondent Father.
113. The Respondent Father has not taken advantage of all of the services while in the Department of Corrections that may help him modify his criminal conduct. The Respondent Father testified that he stated in court in November, 2009 that he would take anger management classes. He testified those classes are held every six months and he had not started the classes although he has been incarcerated . . . since June, 2008. He testified that he started the GED program last year but did not finish. The Respondent Father testified he did participate in an ethics class and completed it.
114. The Respondent Father continues not to take responsibility for his criminal actions. The Respondent Father essentially testified that the Robbery with a Dangerous Weapon offense was a misunderstanding and the knife popped open and he had no choice but to plead guilty. The Respondent Father failed to testify about the other offenses that he pled guilty to for violations that occurred from March, 2007 to July, 2007. The Respondent Father's minimization of his criminal behavior and lack of insight reflects a probability of repetition of this behavior.
115. The Respondent Father neglected the minor children in that the Respondent Mother became involved with the DSS due to her inappropriate care of the minor children and her unstable lifestyle. Although the Respondent Father had to know the minor children were not being properly cared for by the Respondent Mother, he did not provide any care or support for the minor children.
116. The Respondent Father testified that he went into custody in July, 2007. . . . The Respondent Father has not provided financial support for the minor children since that time. The Respondent Father testified he went into the Department of Corrections with $100.00 in his account. He testified that he has always worked while at Craggy [Correctional Center]. He has worked in laundry since November, 2008 and earns approximately $9.50 [per] day. He saved $300 last year. The Respondent Father has sent no money for the care of the children while incarcerated since July, 2007.
117. The Respondent Father has not provided an appropriate alternative placement for the minor children although the minor children were removed from their mother's care in December, 2007.
. . . .
119. As to the minor child, [Brooke], the Respondent Father has provided zero financial support although he had the ability to provide some support [to] the minor child.
120. As to the minor child, [Grace], the Court finds the Respondent Father's testimony more credible than the Respondent Mother's and finds that the Respondent Father gave the Respondent Mother approximately $500 for the care and support of the minor child until he went into custody. He testified he would give her money here and there when he could. The Respondent Father was charged on June 20, 2006 of Possession of Drug Paraphernalia and convicted on November 13, 2006; the Respondent Father was charged with Breaking and Entering on July 5, 2 006 and convicted on November 14, 2006. The Respondent Father's continued criminal violations and drug use, just after the birth of the minor child, likely contributed to his lack of employment.
121. The minor child, [Grace], was born in June, 2006 and the Respondent Father went into custody July, 2007 for this last time in [sic] . The Respondent Father testified he saw her approximately 15-20 times before he got locked up. The Respondent Father was unable to initially see the minor child because there was a restraining order preventing him from seeing the Respondent Mother, although that ultimately was dropped.
The trial court's findings of fact also establish that Grace and Brooke were previously adjudicated neglected. We conclude that the foregoing findings are sufficient to support the trial court's conclusion that DSS had proven the ground of neglect by clear, cogent, and convincing evidence.
Respondent-father argues that the trial court erred in concluding that there was a likelihood of repetition of neglect. At the time of the termination, Respondent-father was incarcerated, and he argues that "proper legal analysis involves measuring the efforts a parent has made toward his child against what he could do given his incarceration." Respondent-father claims that the trial court failed to analyze as Respondent-father suggests and instead based its findings on his past criminal conduct, his incarceration, and Respondent-father's amount of contact with and support for the minor children. Respondent-father correctly points out that "[i]ncarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision." In re P.L.P., 173 N.C. App. 1, 10, 618 S.E.2d 241, 247 (2005) (internal quotation marks omitted), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006). However, we disagree that the trial court placed an inappropriate amount of emphasis on Respondent-father's incarceration in determining that neglect would be likely if the minor children were returned to his care. Instead, the trial court properly looked at Respondent-father's past neglect, combined with any change in circumstances evidenced by Respondent-father. The findings establish that Respondent-father made little effort to care for or support Grace prior to his incarceration and that he left his minor children in the care of Respondent-mother, who failed to provide appropriate care. Instead, Respondent-father engaged in a "crime spree," as discussed by the trial court, which he knew or should have known would jeopardize his ability to provide care for the minor children.
Respondent-father cites Shermer in support of his argument, and claims that his case is analogous to Shermer. In Shermer, by the time of the filing of the termination of parental rights petition, the father was out of prison, contacted DSS less than two weeks after being released from prison, told DSS that he did not want his parental rights terminated, was attending classes to better qualify him for employment, and had entered into a case plan with DSS. Shermer, 156 N.C. App. at 287-88, 576 S.E.2d at 407-08. We held that "[u]pon careful review of the evidence, . . . the evidence of circumstances at the time of hearing did not support the conclusion that respondent was neglecting the children at that time or that any previous neglect was likely to reoccur." Id. at 287, 576 S.E.2d at 407-08. Here, at the time of the hearing, Respondent-father was still in prison and was to remain incarcerated for several more years. Furthermore, at the hearing, Respondent-father still refused to take responsibility for his criminal actions and failed to take advantage of services aimed at bettering his life.
Finally, Respondent-father argues that his circumstances had changed because he requested visits with the minor children in prison, attempted to send them gifts, and suggested placements. First, we note that the trial court considered this evidence, as demonstrated in findings of fact numbers 124 through 129 and in the trial court's dismissal of the willful abandonment ground. However, these actions do not offset Respondent-father's failings in other regards. Therefore, we find no error in the trial court's conclusion that there was a likelihood of repetition of neglect if the children were returned to Respondent-father's care. Accordingly, we affirm the trial court's order finding grounds for termination of Respondent-father's parental rights.
II.
Next, we turn to Respondent-mother's argument that the trial court erred in concluding that it was in the children's best interest to terminate her parental rights. After an adjudication determining that grounds exist for terminating parental rights, the trial court is required to consider the following factors in determining whether termination is in the juvenile's best interest:
(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) (2009).
We have used an abuse of discretion standard in reviewing a trial court's best interest determination under N.C. Gen. Stat. § 7B-1110(a), see In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002), but Respondent-mother contends that this Court should re-examine use of the standard. Respondent-mother argues that while an abuse of discretion standard was applicable under a past version of the statute, our legislature's 2005 amendments to the statute imposed a new standard of review. Respondent-mother submits that N.C. Gen. Stat. § 7B-1110(a) now imposes a mandate to the trial court to terminate upon a best interest finding after considering structured factors. Therefore, Respondent-mother argues this Court should now review a trial court's best interest conclusion of law to determine whether it is supported by the trial court's findings of fact.
While Respondent-mother is correct in describing the 2005 amendments to N.C. Gen. Stat. § 7B-1110(a), we disagree that the amendments signify any change in the standard of review. The fact that the legislature mandated six factors for a trial court to consider during its best interest determination does not change the fact that the trial court's decision is discretionary. Indeed, we have consistently used the abuse of discretion standard in reviewing the trial court's best interest determination, even after implementation of the structured factors set out in N.C. Gen. Stat. § 7B-1110(a). See, e.g., In re S.R., ___ N.C. App. ___, ___, 698 S.E.2d 535, 541, disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (2010); In re S.C.H., ___ N.C. App. ___, ___, 682 S.E.2d 469, 475 (2009), aff'd per curiam, 363 N.C. 828, 689 S.E.2d 858 (2010); In re R.B.B., 187 N.C. App. 639, 648, 654 S.E.2d 514, 521 (2007). Therefore, we reject Respondent-mother's argument that our standard of review should be modified.
Accordingly, we turn to the trial court's best interest determination in the instant case and review the trial court's determination for an abuse of discretion. "Abuse of discretion exists when the challenged actions are manifestly unsupported by reason." Barnes v. Wells, 165 N.C. App. 575, 580, 599 S.E.2d 585, 589 (2004) (internal quotation omitted).
Respondent-mother argues that the trial court's best interest determination is in error because the trial court's findings described Respondent-mother's past circumstances, ignored Respondent-mother's progress on her case plan, and ignored Respondent-mother's cognitive limitations. While these issues certainly may be considered in the trial court's best interest determination, they are more pertinent to the trial court's adjudication determination, and it is not error for the trial court to focus on the factors listed in N.C. Gen. Stat. § 7B-1110(a).
In its orders, the trial court made the following findings of fact, which specifically address the criteria listed in N.C. Gen. Stat. § 7B-1110(a):
This set of findings is identical in both the order pertaining to Grace and the order pertaining to Brooke.
1. The Court finds that it is in the best interest of the minor children that the parental rights of the Respondent Mother and the Respondent Father be terminated.
2. The minor children have been in placement outside the home and care of the respondent mother for approximately 30 months.
3. The minor children are very bonded with their foster parents and are thriving. The minor children's behaviors have dramatically improved since being placed with this foster family. The minor children do not have a bond with the Respondent Father as they do not know him. The minor children have a bond with their mother, but they separate[] from her easily.
4. The minor children are in a pre-adoptive home and the pre-adoptive parents have been approved for adopting the minor children, and there are no barriers to adoption.
5. Although the Respondent Mother and the Respondent Father love their minor children, they continue to lack the insight for changing conditions that led to the removal of the minor children in the foreseeable future.
6. The minor children have been placed outside the home for 56% and 95% of their lives respectively and need permanence.
7. The minor child, [Grace], will be 4 years of age on June [], 2010, and the minor child, [Brooke], is 3 years and [] months old.
8. The permanent plan for the minor children is adoption and termination of the Respondent Parents' parental rights will assist in this plan.
Here, the trial court made findings which demonstrated that it considered the age of the minor children, the likelihood of adoption, the bond between Respondent-mother and her children, the quality of the relationship between the minor children and the proposed adoptive parents, and whether termination would aid in the accomplishment of a permanent plan for the minor children. Based on our review of the findings, the trial court properly considered all pertinent factors. Accordingly, we conclude that the trial court did not abuse its discretion in determining that termination of parental rights is in the children's best interests.
Affirmed.
Judges THIGPEN and McCULLOUGH concur.
Report per Rule 30(e).