Opinion
No. COA09-437.
Filed August 18, 2009.
Wake County Nos. 07JT187-188.
Appeal by Respondent from order dated 13 February 2009 by Judge Eric Craig Chasse in District Court, Wake County. Heard in the Court of Appeals 3 August 2009.
Office of the Wake County Attorney, by Assistant County Attorney Roger A. Askew and Assistant County Attorney Mary Elizabeth Smerko, for Petitioner-Appellee Wake County Human Services. Mercedes O. Chut for Respondent-Appellant. Susan F. Vick for Guardian ad Litem
Respondent is the mother of D.M.S. and D.L.H. (the children), who are the subject of this appeal. Wake County Human Services (WCHS) took nonsecure custody of the children on 2 March 2007. The trial court adjudicated the children as neglected on 11 May 2007. WCHS filed a motion to terminate Respondent's parental rights on 3 October 2008. Following a hearing on 13 January 2009, the trial court entered an order terminating Respondent's parental rights on the following grounds: (1) Respondent neglected the children within the meaning of N.C. Gen. Stat. § 7B-101(15) and it was probable there would be a repetition of neglect if the children were returned to the home of Respondent; (2) Respondent willfully left the children in foster care for more than twelve months without showing to the satisfaction of the trial court that reasonable progress under the circumstances had been made in correcting the conditions which led to the removal of the children from the home; and (3) the children had been placed in the custody of WCHS for a continuous period of six months next preceding the filing of the motion to terminate parental rights and Respondent had willfully failed for that period to pay a reasonable portion of the cost of care for the children although physically and financially able to do so. From this order Respondent appeals.
The trial court's findings of fact show that at the time of the termination hearing, D.M.S. was six years old and D.L.H. was two years old. Respondent and her family had a prior history with WCHS dating back to 2004. Respondent and the children were living with Respondent's mother when the children came into the custody of WCHS. Previously, Respondent and the children had resided with D.L.H.'s biological father (Mr. H), where the children were exposed to substantial domestic violence between Respondent and Mr. H. Respondent was also involved in substance abuse and domestic violence toward other family members. Respondent was unemployed and homeless. The home of Respondent's mother was determined not to be a suitable placement for the children because Respondent's mother had a history of substance abuse, mental illness, and child protective services involvement, in addition to felony convictions.
In order to regain custody of the children, Respondent was required to follow the recommendations of a substance abuse assessment, comply with random drug screens, obtain and maintain employment, maintain safe and stable housing suitable for herself and the children, receive domestic violence counseling and education, participate in parenting classes recommended as a result of parenting assessment, participate in anger management classes as recommended by an anger management assessment, avoid and address behaviors that might result in criminal charges, and pay child support.
Respondent subsequently failed to participate fully in substance abuse treatment, as she only sporadically attended individual and group programming. Respondent also failed to produce consistent negative drug screens. All but one of Respondent's random drug screens were positive. Respondent tested positive for marijuana as recently as 12 March 2008, the last screen performed prior to the trial court's relieving WCHS of reunification efforts.
Respondent failed to complete a psychological evaluation and failed to engage in anger management programming because she could not maintain sobriety for sixty days as required for admission into these programs. Respondent also failed to establish and maintain housing sufficient for herself and the children. Respondent and Mr. H continued to engage in domestic violence as recently as May 2008.
Respondent failed to maintain employment and did not work during the four months preceding the hearing. Respondent applied for social security disability benefits in December 2008. She did not pay child support as ordered. On the date of the hearing, she was in arrears in the amount of $736.04. In the six months preceding the termination hearing, Respondent was admitted twice to mental health facilities.
I.
Respondent first contends that certain findings of fact are not supported by sufficient evidence. At the adjudication phase of a termination of parental rights proceeding, the party seeking to terminate parental rights must show by clear, cogent and convincing evidence the existence of statutory grounds for termination of rights. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). Clear, cogent and convincing evidence is a higher quantum of proof than the preponderance of the evidence, but is less stringent than beyond a reasonable doubt. In re Montgomery, 311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984). In making its findings, the trial court may consider and rely upon written reports, prior court orders, and the attorneys' oral arguments "as long as a witness or witnesses are sworn or affirmed and tendered to give testimony." In re A.M., N.C. App., 665 S.E.2d 534, 536 (2008). The appellate court reviews the trial court's order of adjudication to determine whether the trial court's findings of fact are supported by "clear, cogent and convincing evidence," and whether the findings of fact "support the conclusions of law." In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). The appellate court is bound by the trial court's findings of fact "where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary." Montgomery, 311 N.C. at 110-11, 316 S.E.2d at 252-53.
Respondent challenges the findings that Respondent's family came to the attention of WCHS as far back as 2004, that Respondent's relationship with Mr. H involved domestic violence, and that Respondent engaged in substance abuse and homelessness. Respondent also challenges the findings that Respondent's mother had a prior record of child protective services involvement, substance abuse, and mental health issues. Respondent argues these findings are not supported by sufficient evidence. We disagree.
In the order adjudicating the children as neglected, Respondent stipulated to the following findings of fact: that WCHS received three child protective services reports regarding the children dating back to 2004 that alleged improper supervision and injurious environment; that Respondent had a history of unemployment, unstable housing, domestic violence, anger management, and possible substance abuse; that for part of the year preceding the order adjudicating the children as neglected, Respondent resided off and on with Mr. H; that her relationship with Mr. H had been characterized by extensive domestic violence in the presence of the children; and that after conducting a criminal background check of Respondent's mother as a possible placement option, WCHS disapproved of placement of the children with their maternal grandmother.
Respondent next argues that the trial court's findings that she failed to provide negative drug screens are inaccurate because they create the impression that she produced several positive drug screens. Sharon Wynn (Ms. Wynn), the social worker in charge of the case, testified that all but one drug screen she gave Respondent came back positive. Ms. Wynn further testified that the most recent positive test was 12 March 2008. We hold this testimony supports the findings.
Respondent next challenges the finding that she failed to maintain employment and is currently unemployed. Respondent cites a history of employment with Dunkin Donuts until early March 2008. Ms. Wynn concurred that Respondent had been employed at Dunkin Donuts, but testified that at the time of the hearing, Respondent was unemployed, and had not been employed for at least four months prior to the hearing. Respondent also testified at the hearing that she was not seeking employment at that time. We hold this testimony is evidence that supports this finding.
Respondent next disputes the finding that she continued to engage in incidents of domestic violence as recently as May 2008, and that she violated a domestic violence protective order. Respondent argues the evidence does not support a finding that she violated a protective order. We disagree.
Respondent also testified that she had been arrested and jailed on charges of assault and breaking out a windshield during the summer of 2008. The social worker testified that Responden engaged in another incident of domestic violence with Mr. H. on 19 May 2008. Respondent testified she incurred a charge of assault when she hit a cousin with whom she was residing after the cousin asked Respondent to move out. According to a court report prepared for a hearing on 12 June 2008, a police report stated Respondent "struck [a female relative] in the nose with [Respondent's] hand." According to a court summary prepared 23 July 2008, Respondent apologized to Mr. H in June 2008 for taking out a domestic violence protective order against him. Respondent also attempted to resume a relationship with Mr. H.
Respondent next disputes findings that she missed two scheduled meetings with a social worker and that she failed to establish and maintain housing sufficient for herself and the children. Respondent asserts the record shows she missed only one meeting with a social worker and that the social worker could not testify regarding Respondent's housing situation at the time of the hearing because the social worker last had contact with Respondent in June 2008. We conclude that whether Respondent missed one or both meetings with the social worker is inconsequential given Respondent's failure to comply with the overwhelming majority of her case plan. We find the record supports the finding regarding Respondent's housing situation. The record shows that at the time of the hearing, Respondent had vacated her last known address and had given the social worker only a telephone number to contact her. The record also shows that during the course of this case, Respondent has resided in jail, in a motel with Mr. H., in Dorothea Dix Hospital, at the Healing Place, and with friends. Respondent never provided the social worker with a lease or other documented living situation. At the time of the hearing, Respondent testified she was residing with a friend who did not wish to be identified, and that she had been residing with the friend since mid-December 2008, following Respondent's release from Dorothea Dix Hospital.
Respondent also contends the trial court erred by finding as fact that "the conduct of the parents has been such as to demonstrate that they will not promote the healthy and orderly, physical and emotional well being of the children." Respondent argues that this finding is also a conclusion of law which "can derive only from the evidentiary findings in the order."
[W]hile Rule 52(a) does not require a recitation of the evidentiary and subsidiary facts required to prove the ultimate facts, it does require specific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached.
In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) (quoting Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 658 (1982)). "Ultimate facts are the final resulting effect reached by processes of logical reasoning from the evidentiary facts." Appalachian Poster Advertising Co. v. Harrington, 89 N.C. App. 476, 479, 366 S.E.2d 705, 707 (1988). We conclude that this finding is one of ultimate fact. We find that it is supported by the evidence and other findings of fact.
II.
Respondent next argues the trial court erred in failing to appoint a guardian ad litem for her pursuant to N.C. Gen. Stat. § 7B-1101.1(c). Respondent has filed a motion to amend the record on appeal to include an assignment of error raising this issue. We allow the motion and consider the issue. The foregoing statute provides that upon motion of a party or the court's own motion, "the court may appoint a guardian ad litem for a parent if the court determines that there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest." N.C. Gen. Stat. § 7B-1101.1(c) (2007). This statute permits, but does not mandate, the appointment of a guardian ad litem when a parent is suspected of having diminished capacity. In re L.B., 187 N.C. App. 326, 328, 653 S.E.2d 240, 242 (2007), disc. review denied, 362, N.C. 358, 661 S.E.2d 247, aff'd ___ N.C. ___, 666 S.E.2d 751 (2008). "A trial judge has a duty to properly inquire into the competency of a litigant in a civil trial or proceeding when circumstances are brought to the judge's attention, which raise a substantial question as to whether the litigant is non compos mentis." In re J.A.A. S.A.A., 175 N.C. App. 66, 72, 623 S.E.2d 45, 49 (2005). "Whether the circumstances are sufficient to raise a substantial question as to the party's competency is a matter to be initially determined in the sound discretion of the trial judge." Id. (quoting Rutledge v. Rutledge, 10 N.C. App. 427, 432, 179 S.E.2d 163, 166 (1971)). Circumstances that our Court has considered to be determinative include: (1) whether the parent requested appointment of a guardian ad litem; (2) whether the petition for termination of parental rights alleged the parent was incapable of parenting the children; and (3) whether the petition alleged facts tending to suggest the parent was mentally ill or incompetent. See In re D.H., 177 N.C. App. 700, 708-09, 629 S.E.2d 920, 925 (2006) (holding trial court did not err by failing to appoint a guardian ad litem pursuant to the predecessor statute, N.C. Gen. Stat. § 7B-1101, when the parent did not request appointment of a guardian ad litem, the petition did not allege the parent's incapability to parent the children, and the petition did not allege that the parent was incompetent); In re N.A.L., ___ N.C. App. ___, ___, 666 S.E.2d 768, 771 (2008) (holding trial court erred in failing to inquire into the competency of the parent when the petition specifically alleged the respondent-mother was incapable of providing for the proper care and supervision of the minor child "due to [the] respondent-mother's `problems in controlling her anger outbursts; her significant tendency to be aggressive towards others, including her child; and her lack of understanding of her prior neglect of the minor child.'").
In the present case, Respondent did not request appointment of a guardian ad litem. Although the motion to terminate parental rights does allege Respondent was incapable of providing for the proper care and supervision of the children, the motion does not allege that the incapability was due to some mental defect, mental illness, or lack of understanding. Finally, nothing in the motion suggests that Respondent is, in the words of N.C. Gen. Stat. § 7B-1101.1(c), "incompetent or has diminished capacity and cannot adequately act in his or her own interest." We conclude the trial court did not abuse its discretion by failing to appoint a guardian ad litem for Respondent.
III.
Respondent's final argument contends the trial court erred in concluding that grounds existed to terminate her parental rights. One of the statutory grounds found by the trial court is that Respondent had neglected the children. N.C. Gen. Stat. § 7B-1111(a)(1) (2007). A neglected juvenile is defined by N.C. Gen. Stat. § 7B-101(15) as one
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. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
N.C. Gen. Stat. § 7B-101(15) (2007). In determining whether a juvenile is neglected, the trial court may consider evidence of neglect prior to removal of a child from custody, and "must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). When a child has been absent from the parent's home for a period of time preceding the termination hearing, "the decision of the trial court must of necessity be predictive in nature, as the trial court must assess whether there is a substantial risk of future abuse or neglect of a child based on the historical facts of the case." In re McLean, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999). Conduct which may support a determination that a child is neglected includes alcohol or substance abuse by the parent or physical abuse or injury to a child inflicted by the parent. In re Stumbo, 357 N.C. 279, 283-84, 582 S.E.2d 255, 258-59 (2003).
At the time the children were removed from Respondent's custody due to neglect, Respondent stipulated that she had a history of unemployment, unstable housing, domestic violence, anger management problems, and substance abuse. The trial court's findings of fact establish that Respondent continues to: have a problem with substance abuse, experience residential instability, be unemployed, and engage in a domestic relationship marked by violence. The findings also show that Respondent has failed to complete anger management classes. We hold these findings support the trial court's conclusion that the children are neglected and that it is probable the neglect will be repeated if the children are returned to Respondent's custody.
Having upheld the determination of one ground to terminate Respondent's parental rights, we need not consider the other grounds. In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004).
We also note that in Respondent's motion to amend the record on appeal, Respondent sought to amend her brief to include a statement of the standard of review. As we are able to decide this appeal without the statement of review, we dismiss that portion of Respondent's motion.
For the foregoing reasons, we affirm the order terminating Respondent's parental rights.
Affirmed.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).