Opinion
No. COA10-371
Filed 17 August 2010 This case not for publication
Appeal by Respondent-Mother from order entered 5 January 2010 by Judge Hugh B. Lewis in Mecklenburg County District Court. Heard in the Court of Appeals 20 July 2010.
Kathleen Arundell Widelski, Mecklenburg County Department of Social Services, Youth and Family Services, for Petitioner. Pamela Newell, GAL Appellate Counsel, for guardian ad litem.
Wyrick Robbins Yates and Ponton, LLP, by Edward Eldred, for Respondent.
Mecklenburg County No. 07 JT 1054-55.
This case arises from the following proceedings: On 17 December 2007, the Mecklenburg County Department of Social Services ("DSS") filed a petition alleging that Respondent-Mother's ("Respondent") minor children, Karen and Kelly, were neglected and dependent. On 25 February 2008, the trial court adjudicated both juveniles as neglected and dependent. On 27 February 2009, Petitioner filed a motion to terminate Respondent's parental rights. On 5 January 2010, the trial court entered an order terminating Respondent's parental rights to the juveniles pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (6). Respondent filed notices of appeal on 2 February 2010 with respect to each child.
Pseudonyms are used throughout our opinion to protect the identities of the minor children and for ease of reading.
I. Factual Background
The trial court's findings of fact show the following: Karen was born in 2000, and Kelly was born almost four years later. On or about 8 August 2007, Karen was injured while in Respondent's home. Respondent and the children were the only ones in the home at that time. Before the incident occurred, Respondent had stopped taking her prescription medications because she had misplaced them during a move. As a result of this incident, Respondent was charged with misdemeanor child abuse. The charge was dismissed after the police officer twice failed to appear in court. The juveniles were returned to the home of their maternal grandparents, where they had previously resided. Respondent was asked to undergo a psychological evaluation, but refused.
After Petitioner filed a juvenile petition on 17 December 2007 alleging that the two juveniles were neglected and dependent, Respondent entered into a case plan in which she agreed to (1) obtain a parenting capacity evaluation and follow through with all recommendations; (2) sign medical and other releases and take prescribed medications; (3) complete parenting classes; (4) maintain safe, stable and appropriate housing for herself and the juveniles; (5) contact the social worker at least weekly; (6) cooperate with the guardian ad litem; (7) attend the juveniles' medical and therapy appointments; and (8) regularly visit the juveniles.
Respondent has medical and mental health issues. Over the course of seven separate sessions from July to September 2008, Respondent underwent a psychological evaluation which revealed that her judgment and insight appeared "somewhat below average." Respondent has a history of psychosis, obsessive compulsive disorder, depression, and narcolepsy. She was involuntarily hospitalized at Broughton Hospital in January 2008 for 14 days.
Respondent's "psychological resources for coping with stressors are limited" and she has "disruptions in the clarity of her thought processes." Although she has "demonstrated sufficient awareness of what is necessary as a parent to provide for appropriate care of a child," Respondent's psychological issues "are likely to result in [Respondent] sometimes behaving in ways that are ineffective, inappropriate, or otherwise not in response to what a situation actually requires." Respondent did not exhibit psychotic behavior during the evaluation, but she "did exhibit signs of irrational thought combinations which are consistent with thought disorder associated with psychosis." Given Respondent's mental health issues, proper medication management and therapy are essential to her ability to contribute financially and emotionally to caring for her children.
In December 2008, Respondent had self-inflicted sores on her face when she appeared for a DSS Youth and Family Services team decision-making meeting. During the meeting, she appeared fidgety and anxious and continuously looked over her shoulder and around the room. Respondent attended another team decision-making meeting shortly thereafter. The sores on her face had worsened. She left the meeting to lie on a couch, where she remained for two hours. She never returned to the meeting.
At a permanency planning hearing on 23 December 2008, the trial court ordered that reunification efforts cease and that the goal for the juveniles be changed to termination of parental rights ("TPR"). DSS was ordered to continue to assist Respondent if she requested assistance. Respondent then missed two scheduled visits with the juveniles in January 2009. The juveniles exhibited increased negative behaviors after these missed visits. Thereafter, DSS filed a motion to terminate Respondent's parental rights.
Between the filing of the TPR motion and the commencement of the TPR hearing on 5 November 2009, Respondent failed to supply any proof that she was participating in mental health therapy or complying with her medication regimen. Respondent has not participated in any consistent mental health therapy since May 2008. As of the date of the hearing, Respondent continued to live at an assisted living facility, where she had resided since April 2008. Respondent receives a monthly check for disability in the amount of $650, of which all but $30 is paid as rent to the assisted living facility where she resides. She has not demonstrated any ability to meet the basic needs of the juveniles.
Respondent had no plan as to where the juveniles could reside if the court did not terminate her parental rights. The juveniles were originally placed with their maternal grandparents. During this placement, the maternal grandfather would leave the juveniles with Respondent despite instructions not to allow unsupervised contact between Respondent and the juveniles. On one occasion, the maternal grandmother left Kelly with Respondent, who was in a catatonic state at the time. The maternal grandmother also engaged in inappropriate conversations during visitation. The maternal grandmother would pay attention to one child while ignoring the other. Respondent does not believe her parents' home is an appropriate placement for the juveniles.
In addition to the maternal grandparents, a maternal great aunt expressed interest in being a placement for the juveniles. Her home, however, had not been approved for placement because a home study was not completed. The great aunt has not been proactive in seeking placement or completion of the home study. She also has two other children in her home and lacks an understanding of Karen's mental health needs. The juveniles are currently placed together in a foster home.
Karen and Kelly both participate in therapy. Karen is a different child since she entered foster care. She is calm and appropriate in her interactions, articulate and affectionate, and is bonding with her foster parents. Kelly participates in speech therapy and she now speaks at an age-appropriate level. She exhibits more positive behaviors and appropriate interactions. She is also bonding with the foster parents. Karen and Kelly are the only two children in the home of the foster parents, who have expressed interest in adopting them. Karen has not fared well in foster homes where there are other children besides Kelly. Karen has difficulty interacting with other children.
The trial court concluded that DSS proved by clear, cogent, and convincing evidence the existence of the following grounds to terminate Respondent's parental rights: (1) that she has neglected the juveniles and repetition of the neglect remains probable; (2) that she willfully left the juveniles in foster care for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juveniles; and (3) that she is incapable of providing for the proper care and supervision of the juveniles such that the juveniles are dependent within the meaning of N.C. Gen. Stat. § 7B-101 and a reasonable probability exists that such incapability will continue for the foreseeable future. See N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (6). The court concluded that termination of Respondent's parental rights and adoption are in the juveniles' best interests, and thereupon entered an order terminating Respondent's parental rights to Karen and Kelly. From this order, Respondent appeals.
II. Discussion
Proceedings to terminate parental rights occur in two phases: (1) the adjudication phase, and (2) the disposition phase. In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003). In the adjudication phase, the burden of proof is on the petitioner; findings made by the trial court must be supported by clear, cogent, and convincing evidence, and the findings must support a conclusion that at least one statutory ground for the termination of parental rights exists. In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d 403, 406 (2003). A trial court's determination that at least one ground for termination exists will be overturned only upon a showing by the respondent that there is a lack of clear, cogent, and convincing competent evidence to support the findings. In re Allen, 58 N.C. App. 322, 325, 293 S.E.2d 607, 609 (1982). The trial court's "findings of fact are conclusive on appeal if they are supported by `ample, competent evidence,' even if there is evidence to the contrary." In re J.M.W., 179 N.C. App. 788, 792, 635 S.E.2d 916, 919 (2006) (quoting In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988)). "Once [the petitioner] has met its burden of proof in showing the existence of one of the grounds for termination, . . . the decision of whether to terminate parental rights is within the trial court's discretion." In re Allred, 122 N.C. App. 561, 569, 471 S.E.2d 84, 88 (1996). "The decision to terminate parental rights is vested within the sound discretion of the trial judge and will not be overturned on appeal absent a showing that the [trial court's] actions were manifestly unsupported by reason." In re J.A.A., 175 N.C. App. 66, 75, 623 S.E.2d 45, 51 (2005).
A. Grounds for Terminating Respondent's Parental Rights
Respondent challenges each of the three grounds found by the trial court to support termination of her parental rights. The first ground found by the trial court is that Respondent neglected the children. See N.C. Gen. Stat. § 7B-1111(a)(1) (2009) (The court may terminate the parental rights upon a finding that the parent has abused or neglected the juvenile.). As defined by N.C. Gen. Stat. § 7B-101(15), a neglected juvenile is 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.
N.C. Gen. Stat. § 7B-101(15) (2009). "A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding." In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). If the child is removed from the parent before the termination hearing, then "[t]he trial court 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).
Respondent contends that the evidence does not support the court's conclusion that there is a probability of neglect should the children be returned to her care. She argues that because the court's conclusion of probable repetition of neglect was based upon a determination that she was incapable of properly parenting the two children, the evidence did not support the conclusion that Respondent "would culpably neglect [the juveniles]."
Respondent refers to the trial court's "finding" that repetition of neglect was probable. However, this was actually a conclusion of law made by the trial court in the TPR order.
Respondent's argument is misplaced. As stated by our Supreme Court, the applicable rule of law is as follows:
Where the evidence shows that a parent has failed or is unable to adequately provide for [her] child's physical and economic needs, whether it be by reason of mental infirmity or by reason of willful conduct on the part of the parent, and it appears that the parent will not or is not able to correct those inadequate conditions within a reasonable time, the court may appropriately conclude that the child is neglected. In determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent.
In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984). The findings of fact show that Respondent has a history of serious mental illness, that she is residing in an assisted living facility where children are not allowed to reside, and that she is unable to demonstrate that she has the ability to meet the basic needs of her children. The findings of fact also show that at the time of the hearing, Respondent was not complying with her medication regimen, was not involved with therapy, and had not been in compliance for a significant period of time. Respondent does not dispute these findings of fact. A parent's failure to make a substantial change in the conditions that led to the removal of a child from the parent's home suggests "a strong probability of a repetition" of the behavior that resulted in the removal of the child. In re Greene, 152 N.C. App. 410, 417-18, 568 S.E.2d 634, 639 (2002). We therefore hold that the trial court properly concluded that Respondent neglected the children and that there is a probability of repetition of neglect. Respondent's argument is overruled.
Although Montgomery was decided under former N.C. Gen. Stat. § 7A-289.32, 517(21), the language in the former statute is almost identical to the current law, N.C. Gen. Stat. §§ 7A-1111(a)(1), 7B-101(15). Thus, the Court's holding in Montgomery is still relevant to our decision in the present case.
"[W]here the trial court finds multiple grounds on which to base a termination of parental rights, and `an appellate court determines there is at least one ground to support a conclusion that parental rights should be terminated, it is unnecessary to address the remaining grounds.'" In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241, 246 (2005) (quoting In re Clark, 159 N.C. App. 75, 78 n. 3, 582 S.E.2d 657, 659 n. 3 (2003)), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006). Consequently, we do not address Respondent's arguments concerning the other two grounds for termination found by the trial court.
B. Best Interests of the Juveniles
With respect to disposition, Respondent contends that the children's best interests are not served by termination of her parental rights. We disagree.
N.C. Gen. Stat. § 7B-1110(a) enumerates six factors that trial courts must consider when making a determination as to a child'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).
Respondent concedes that the court made findings concerning the juveniles' ages and whether termination would aid in the accomplishment of the permanent plan. Respondent argues that the trial court made no finding regarding the bond between the juveniles and Respondent and made only a minimal finding concerning adoption by the foster parents.
We have held that the failure of the trial court to make an express finding as to the bond between the parent and the children is not fatal if the court makes findings as to the remaining statutory factors and other relevant considerations sufficient to enable this Court to determine whether the trial court abused its discretion. 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). We stated in S.C.H. that the court's findings as to the parent's failure to provide gifts, to send cards and letters, and to visit the child reflected a consideration of the bond between the parent and child. Id.
In the present case, the court made findings as to the ages of the children, the progress the children have made while in foster care, the bonds they have formed with the foster parents, the desire of the foster parents to adopt them, the lack of barriers to adoption, the juveniles' best interests in terms of permanence, safety, and protection, the special needs of the children, and Respondent's missing visits with the children resulting in increased negative behaviors by the children. We conclude that the court's findings are sufficient to allow us to determine that the court's decision to terminate parental rights is sound and well-reasoned. Thus, we find no abuse of discretion.
The order terminating Respondent's parental rights is
AFFIRMED.
Judges STEELMAN and Ervin concur.
Report per Rule 30(e).