Opinion
No. COA11-85
Filed 5 July 2011 This case not for publication
Appeal by respondent-mother from orders entered 15 October 2010 by Judge David B. Brantley in Wayne County District Court. Heard in the Court of Appeals 8 June 2011.
Baddour, Parker Hine, P.C., by James W. Spicer, III, for petitioner-appellee Wayne County Department of Social Services. Pamela Newell, for appellee Guardian Ad Litem. Joyce L. Terres, for respondent-appellant mother. No briefs filed for respondent-fathers.
Wayne County Nos. 09 JT 37-38.
Respondent-mother appeals the trial court's orders terminating her parental rights to her children J.W.C.H. ("Carl") and H.D.H. ("Hannah") (collectively, "the children"). Carl and Hannah have different biological fathers. Neither Carl's nor Hannah's respondent-fathers appealed from the trial court's orders, and are not parties to the instant appeal. We affirm.
We use pseudonyms to protect the children's identities and for ease of reading.
I. BACKGROUND
Carl was born in 1997, and Hannah in August 2007. The children lived with respondent-mother and their maternal grandmother. The Wayne County Department of Social Services ("DSS" or "petitioner") became involved with the family in 2008 when it received reports of physical altercations between Carl and respondent-mother, including a report that Carl and respondent-mother received black eyes from hitting each other. A further investigation by DSS revealed that Hannah was present during physical altercations between Carl and respondent-mother. In addition, DSS discovered that Carl was physically aggressive toward his maternal grandmother on two occasions. On one occasion, Carl threw a knife at his grandmother, and on another occasion, he hit her in the hand with a ball of clay containing embedded glass fragments. Furthermore, DSS discovered that both Carl and respondent-mother had been diagnosed with mental health issues.
DSS provided the family with In-Home Services. On 8 January 2009, DSS encouraged respondent-mother to place Carl in a group home to ensure her safety as well as the safety of Hannah and the maternal grandmother. A week later, Carl was suspended from school for disruptive behavior, and respondent-mother asked friends of the family, Mr. and Mrs. Starr, to take care of Carl.
A pseudonym.
On 16 March 2009, DSS filed separate juvenile petitions alleging respondent-mother neglected the children. DSS alleged that respondent-mother had not followed through with her services for individual therapy and had not consistently provided for Carl's emotional needs. DSS further alleged that after Mr. and Mrs. Starr had taken care of Carl, he attended school regularly, refrained from disruptive behaviors at school, and attended all of his therapy appointments.
On 18 May 2009, the trial court adjudicated the children as neglected juveniles, placed the children in the custody of DSS, and authorized DSS to place the children in Mr. and Mrs. Starr's home. The trial court also ordered respondent-mother to continue counseling and follow all recommendations, take prescribed medication as directed, and continue parenting classes. Review hearings were held on 23 July 2009 and 22 October 2009.
A permanency planning hearing was held on 4 March 2010. On 5 May 2010, the trial court found that respondent-mother had been diagnosed with major depressive disorder and bipolar disorder; that respondent-mother admitted she was unable to handle Carl's behaviors; that she was working with Client First on substance abuse issues, depression issues, and traumatic brain injury skills; that respondent-mother was an alcoholic, but did not attend Alcoholics Anonymous ("AA") on a regular basis because she does not believe alcohol is a drug; that respondent-mother had to be removed during a visit with her children in September 2009 because of her attitude and behavior; that she stormed out of a meeting and made a suicidal threat on 10 March 2010; and that she showed signs of paranoid thoughts. The trial court continued custody of the children with DSS and authorized DSS to continue placement with Mr. and Mrs. Starr. The trial court relieved DSS of any obligation to continue reunification efforts and adopted termination of parental rights and adoption as the permanent plan.
On 8 June 2010, DSS filed separate petitions to terminate respondent-mother's parental rights for both children under N.C. Gen. Stat. § 7B-1111(a)(1) (2009). DSS also sought to terminate the parental rights of both children's fathers. Copies of the 5 May 2010 permanency planning order were attached to the termination petitions. After the trial court held the pre-trial conference for the termination hearing, DSS, the Guardian ad Litem, and respondent-mother stipulated to certain facts in the juvenile case and those stipulations were filed with the court on 23 September 2010.
On 27 September 2010, the trial court held a hearing on the termination petitions. On 15 October 2010, the trial court terminated the parental rights of respondent-mother and the fathers of both children. Respondent-mother appeals.
II. SUBJECT MATTER JURISDICTION
Respondent-mother first contends the trial court lacked jurisdiction to terminate her parental rights. Respondent-mother argues that the allegations in the petitions to terminate her parental rights did not comply with N.C. Gen. Stat. § 7B-1104(6) and deprived the trial court of subject matter jurisdiction. We disagree.
N.C. Gen. Stat. § 7B-1104(6) provides that a petition for termination of parental rights shall state "[f]acts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist." N.C. Gen. Stat. § 7B-1104(6) (2009). Factual allegations of a petition to terminate parental rights need not be "exhaustive or extensive," but they must "put a party on notice as to what acts, omissions or conditions are at issue." In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002). To meet the statutory requirements, however, "sufficiently detailed allegations need not appear on the face of the petition but may be incorporated by reference." In re H.T., 180 N.C. App. 611, 617, 637 S.E.2d 923, 927 (2006). In In re H.T., this Court found that the allegations in the petition alleging the grounds for termination were a "bare recitation" of the statute; however, because the petition also incorporated the "entire [c]ourt file," the petition alleged sufficient facts to determine whether grounds for termination existed. Id. at 618, 637 S.E.2d at 927. Therefore, the trial court properly exercised subject matter jurisdiction. Id. at 618, 637 S.E.2d at 927-28.
In the instant case, petitioner's factual allegations were sufficient to put respondent-mother on notice regarding the issues in the petition. Both termination petitions stated the legal basis for the petitions, and alleged neglect as the sole ground for terminating respondent-mother's parental rights. Paragraph six of both petitions specifically states: "The grounds to terminate the parental rights of the parents of [the] juvenile are that the parents of the juvenile have neglected the juvenile and continue to neglect the juvenile and the father has abandoned the juvenile." This allegation, standing alone, would constitute a "bare recitation" of the statute and would be insufficient to meet the statutory standard as set forth above. However, the petition also states in paragraph three that "attached hereto and made a part of this Petition is an order of the Court [] from the March 4, 2010 Court date[.]" The order from the 4 March 2010 court date is the permanency planning order, which alleged sufficient facts, such as respondent-mother's mental health and substance abuse issues, to put respondent-mother on notice regarding the acts, omissions, or conditions at issue. Accordingly, we hold that the petition complied with N.C. Gen. Stat. § 7B-1104(6) and the trial court had subject matter jurisdiction over the matter.
III. TERMINATION OF PARENTAL RIGHTS
We next address respondent-mother's contention that the trial court's order must be vacated because it fails to specify the grounds on which termination is based. We disagree.
A. Standard of Review
"The hearing on a petition for termination of parental rights is conducted in two phases: adjudication and disposition." In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 173 (2001). In order to terminate a respondent's parental rights, the trial court must "adjudicate the existence" of one or more of the statutory grounds for termination set forth in N.C. Gen. Stat. § 7B-1111(a). N.C. Gen. Stat. § 7B-1109(e) and (f) (2009). The trial court must support its adjudication by findings of fact based upon clear, cogent, and convincing evidence. Id. Our task in reviewing a termination order is to determine whether the "findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law." In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000) (internal quotation omitted). "For this Court to exercise its appellate function, the trial court must enter sufficient findings of fact and conclusions of law to reveal the reasoning which led to the court's ultimate decision." In re D.R.B., 182 N.C. App. 733, 736, 643 S.E.2d 77, 79 (2007).
B. Initial Matters
Initially, we note that "[r]espondent-[mother] has not challenged any of the . . . 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." In re M.D., ___ N.C. App. ___, ___, 682 S.E.2d 780, 785 (2009). Instead, respondent-mother argues that the trial court used insufficient language in its findings of fact, and that its conclusions of law are not supported by clear, cogent, and convincing evidence.
C. Neglect and Probability of Repetition of Neglect
A trial court may terminate parental rights based on a finding that the parent has neglected the juvenile. N.C. Gen. Stat. § 7B-1111(a)(1) (2009).
Neglected juvenile. — 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 parent at the time of the termination hearing, "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)). Since the determinative factor is the parent's ability to care for the child at the time of the termination hearing, our Court has previously held 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. After considering evidence of changed conditions, 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., J.K.W., T.L.W., T.L.W., 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).
In L.O.K., each of the children had previously been adjudicated to be neglected. 174 N.C. App. at 435, 621 S.E.2d at 242. Therefore, the trial court had to find there was a probability of repetition of neglect if the children were returned to the respondent's custody. Id. The trial court found that, after the minor children were adjudicated neglected,
(1) four, if not five, trial placements had failed; (2) respondent had a history of failing to show a positive response to counseling and educational programs; (3) respondent left a stable job and housing in Greensboro for Ohio where she did not have employment or independent housing; (4) respondent had offered uncertain evidence of stability in her working and living arrangements in Ohio; (5) respondent had to date been unable to cope with the pressure of caring for more than one child at a time and, if custody were restored to her, she would now have five children; and (6) respondent did not seek outside assistance when she needed it.
Id. We held that the trial court's findings were sufficient to establish neglect and the probability of future neglect under N.C. Gen. Stat. § 7B-1111(a)(1). Id. See also In re Leftwich, 135 N.C. App. 67, 72, 518 S.E.2d 799, 803 (1999) (trial court could properly find a probability of future neglect when respondent-mother had not made meaningful progress in improving her lifestyle); In re Davis, 116 N.C. App. 409, 414, 448 S.E.2d 303, 306 (1994) (the parents' failure to "obtain[] continued counseling, a stable home, stable employment, and [attend] parenting classes" was sufficient to show a probability that neglect would be repeated if the child were returned to the care of the parents); In re Johnson, 70 N.C. App. 383, 389, 320 S.E.2d 301, 305-06 (1984) (improper care during a trial placement, failure to make lifestyle changes, and poor attendance at counseling sessions was evidence of neglect).
In the instant case, there was a pre-trial conference, and the orders filed 14 September 2010 stated that the parties "agreed that the issues before the Court are whether or not the parents of the juvenile have neglected the juvenile." Thus, the parties themselves limited the ground for termination to neglect under N.C. Gen. Stat. § 7B-1111(a)(1). On 23 September 2010, respondent-mother stipulated to the following findings:
13. After [respondent-mother's] husband walked out on her, she, while driving under the influence of alcohol, went up the Raleigh exit of US 117 in Wayne County and had a wreck. This was a suicidal gesture.
14. That [respondent-mother] was unable to handle [Carl's] behaviors and he had to be hospitalized in mental hospitals on at least 4 occasions.
15. That [Carl] resents his mother.
. . . .
20. That Jenni Wiggins, a qualified professional [("QP")] with Client First, worked with [respondent-mother] for a long period of time. Client First started working with [respondent-mother] on May 28, 2009. Initially, 35 hours per week were being provided to [respondent-mother]. She was being taught parenting skills, Life domain issues, such as financing, housing, transportation issues, substance abuse services, depression issues and Traumatic Brain Injury (TBI) coping skills. She had psychological and psychiatric evaluations and had been diagnosed with Major Depressive Disorder and Bipolar.
21. That in July, 2009, [respondent-mother] was attac[k]ed while she was intoxicated and received a black eye. Sometimes after attending AA meetings, [she] would go to bars to test her sobriety, but has denied always that she has a drinking problem.
. . .
26. That [respondent-mother] had to go to [DSS] for the Crisis Intervention program (CIP) because her utilities were about to be cut off. She had spent money on clothing instead of saving money to pay her utility bills.
. . .
28. That the records from Client First reveal:
a.) [Respondent-mother] understood what was happening with respect to her children;
b.) In August, 2009, [respondent-mother] was staying out drinking at night and coming home intoxicated and she reported to the QP that she had met a new man and was drinking and staying with him;
c.) In September, 2009, [respondent-mother] had to be removed from a visit with her children because of her attitude and behavior. She had to be kicked by the QP under the table to make her aware of her attitude and behavior, but the under the table kick did not work;
d.) [Respondent-mother] is dependent on the Crisis Line at Client First and still has paranoid behaviors;
e.) [Respondent-mother] has little success with problem solving and cannot keep track of her medications;
. . .
g.) [Respondent-mother] is an alcoholic but does not believe that alcohol is a drug and does not go to AA on a regular basis because of problems with transportation . . .;
h.) In December, 2009, during a visit with her children, despite the fact that the QP had spent considerable time counseling [respondent-mother] about how to act with her children, she raised her voice at [Carl] after getting angry with him;
[i].) In January 2010, [respondent-mother] stated to her QP that she was 35 years old and could look after herself. In spite of the fact that Client First workers have repeatedly told her that she must make her own appointments and make arrangements for transportation, she has failed to do so;
. . .
l.) [Respondent-mother] believes that everyone is out to get her and shows signs of paranoid thoughts;
. . .
n.) In January, 2010, [respondent-mother] was more concerned about getting her daughter, [Hannah], returned to her, but could not tell her QP exactly what she was doing to prepare for the daughter except that she hoped that the daughter's clothing would be sent home with her;
. . .
p.) [Respondent-mother] feels that she is unable to function without Client First being present in her life;
q.) On January 28, 2010, [respondent-mother] attempted to walk out of the office of Michael Herring when she did not like what he was telling her;
r.) [Respondent-mother] does not always keep her visitation with her children and continues to cancel appointments with other service providers;
s.) [Respondent-mother] chose to buy clothes instead of paying her utility bill and then had to receive assistance from [DSS] to pay her utility bill;
t.) [Respondent-mother] has careless spending habits and consumes quantities of cigarettes and soft drinks. She spends $25.00 per week on cigarettes and approximately $40.00 per month on soft drinks. She has been given information about a proper diet, but has refused to follow a proper diet;
u.) On March 10, 2010, [respondent-mother] still had trouble remembering things;
. . .
w.) [Respondent-mother] continued to miss appointments set up through or at the request of Client First;
x.) On or about March 10, 2010, [respondent-mother] stormed out of a CART meeting and made a suicide threat;
y.) On February 24, 2010, [respondent-mother] stated that her goal was to become self[-]sufficient and to become a bartender working in bars or to work in a grocery store;
z.) [Respondent-mother] has refused to take responsibility for her actions or problems.
The trial court then repeated these stipulations in its findings of fact in the orders terminating respondent-mother's parental rights. The trial court also made the following uncontested finding of fact in its termination order:
This numbered finding is in the trial court's order terminating respondent-mother's parental rights to Hannah. The order terminating respondent-mother's parental rights to Carl contains a nearly identical finding, but with a different corresponding number.
44. That when [respondent-mother] was asked why she had not accomplished or at least started to work toward accomplishing her goals she stated that there was a lot of confusion at her home trying to keep straight with her appointments and her mother's appointments.
In the instant case, the stipulations and the trial court's uncontested findings in the termination orders are far more extensive and detailed regarding the probability of repetition of neglect than the trial court's findings in L.O.K., Leftwich, Davis, and Johnson. The stipulations and findings in the instant case provide clear, cogent, and convincing evidence that Carl and Hannah are neglected juveniles and that there is a probability of future neglect if Carl and Hannah were returned to respondent-mother's custody.
Furthermore, in the termination orders, the trial court also made a finding that "grounds exist to terminate the parental rights of both parents with respect to this juvenile as set out above." However, since this finding requires the exercise of judgment or the application of legal principles, it is more properly classified a conclusion of law. See In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675-76 (1997). In addition, the trial court included the following conclusion in its orders: "To the extent that any Finding of Fact is more properly designated a Conclusion of Law[,] the same is hereby incorporated herein by reference." Therefore, this conclusion of law is supported by clear, cogent, and convincing evidence of neglect and the probability of the repetition of neglect.
Since the trial court's pre-trial order dated 14 September 2010 stated that the parties "agreed that the issues before the Court are whether or not the parents of the juvenile[s] have neglected the juvenile[s]," and the trial court concluded that "grounds exist to terminate the parental rights of both parents with respect to this juvenile as set out above[,]" the only possible ground for terminating respondent-mother's parental rights was neglect. Nevertheless, the trial court was required to "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. at 715, 319 S.E.2d at 232. The trial court's findings in the instant case show that the court did just that. Furthermore, the parties' 23 September 2010 stipulations and the trial court's uncontested findings in its termination orders provided clear, cogent, and convincing evidence to support the trial court's conclusions that it was in the best interests of the children to terminate respondent-mother's parental rights.
Even though the parties agreed that the only issue before the trial court was whether or not the parents neglected Carl and Hannah, the better practice would have been for the trial court to explicitly state the ground and cite the particular provision of N.C. Gen. Stat. § 7B-1111(a) to support the termination of respondent's parental rights.
IV. CONCLUSION
The trial court properly exercised subject matter jurisdiction over this matter. The trial court's orders terminating respondent-mother's parental rights to Carl and Hannah are affirmed.
Affirmed.
Judges HUNTER, Robert C. and ELMORE concur.
Report per Rule 30(e).