Opinion
No. COA15-1022
05-17-2016
IN THE MATTER OF: A.E.M., J.I.J.
Mercedes O. Chut for Guilford County Department of Health and Human Services, petitioner-appellee. Mary G. Holliday for guardian ad litem. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Joyce L. Terres, for respondent-appellant mother.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Guilford County, Nos. 08 JT 1, 08 JT 724 Appeal by respondent from order entered 12 June 2015 by Judge Angela Foster in Guilford County District Court. Heard in the Court of Appeals 18 April 2016. Mercedes O. Chut for Guilford County Department of Health and Human Services, petitioner-appellee. Mary G. Holliday for guardian ad litem. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Joyce L. Terres, for respondent-appellant mother. BRYANT, Judge.
Where there is no issue of merit, we find respondent's appeal to be frivolous and affirm the trial court's termination of parental rights order.
Respondent was fifteen years old and in custody of the Guilford County Department of Social Services ("DHHS") for delinquent acts, including assault on a government official, disorderly conduct, and violating her juvenile probation, when she gave birth to A.E.M. ("Allen") in January 2008. The biological father, "D," who is respondent's first cousin, was also fifteen years old and was on juvenile probation for assault with a deadly weapon inflicting serious injury.
In May 2014, DHHS was formed as a result of the merger of the Guilford County Department of Social Services and the Guilford County Department of Public Health.
Pseudonyms will be used throughout as the juveniles were minor children during the pendency of this litigation. N.C. R. App. P. 3.1(b) (2015).
Facts have been incorporated from this Court's previous opinions affirming the juveniles' dependency adjudications, In re J.J., No.COA09-649, 2009 WL 3353016 (N.C. Ct. App. Oct. 20, 2009) (unpublished) and In re A.M., No. COA08-808, 2008 WL 5224095 (N.C. Ct. App. Dec. 16, 2008) (unpublished).
Although the trial court terminated the parental rights of D, he is not a party to this appeal.
Allen was born prematurely with severe birth defects requiring multiple surgeries and prolonged hospitalization. He was later diagnosed with Beckwith-Wiedemann Syndrome, a genetic disorder, and developed cancerous tumors necessitating additional surgery and chemotherapy. DHHS placed respondent at Florence Crittenton, a facility for unwed teenage mothers in Charlotte, North Carolina, which was near the hospital treating Allen. Respondent was discharged from Florence Crittenton for misbehavior and went to live with her father.
On 7 January 2008, DHHS filed a juvenile petition alleging that Allen was dependent, in that his parents were unable to provide for his care or supervision and lacked an appropriate alternative child care arrangement. At the time of the hearing on the petition, D was incarcerated on adult criminal charges. Respondent had signed a case plan with DHHS on 31 January 2008, but had not shown a willingness to engage in services. The trial court entered an adjudication of dependency on 8 April 2008. We affirmed the court's order in In re A.M., No. COA08-808, 2008 WL 5224095 (N.C. Ct. App. Dec. 16, 2008) (unpublished).
DHHS received a report in October 2008 that respondent was skipping school, breaking into homes and stealing, and running away from home. In re J.J., No. COA09-649, 2009 WL 3353016, *2 (N.C. Ct. App. Oct. 20, 2009) (unpublished). Although respondent had denied being pregnant, DHHS received another report in December 2008 that she had given birth to her second child, J.I.J. ("Josiah"). Josiah was born with pedal Lymphadema and "indicators of some genetic problems," but did not share Allen's more serious conditions. Respondent denied under oath that D was Josiah's father, but subsequent genetic testing confirmed D's paternity.
DHHS filed a petition alleging that Josiah was a dependent juvenile on 3 December 2008. The petition cited "the continued legal dependency of [Allen], the parents' age and minimal compliance with reunification services, and the lack of an appropriate alternative caretaker." The trial court adjudicated Josiah dependent on 4 March 2009. This Court affirmed the adjudication. J.J., 2009 WL 3353016 at *8.
From May 2009 to May 2010, respondent made progress on her case plan and regularly visited the children. After attaining majority in June 2010, however, respondent grew increasingly hostile and non-cooperative with DHHS and became resistant to services. She moved to Florida in October of 2010 without first notifying the agency. She claimed to be living with her sister in Orlando but was with D, who had incurred additional criminal charges upon his release from prison and was "on the run from Federal and State law enforcement[.]" Following D's arrest in Florida on a drug charge, respondent returned to Guilford County in December 2010. She enrolled in community college courses and obtained student financial aid allowing her to obtain housing and purchase a vehicle. She gave birth to her third child in April 2011, but refused to identify the father.
During 2011, respondent did not consistently attend her scheduled visitations with Allen and Josiah or their medical appointments. She continued to visit D in jail, and developed a relationship with another man with "a very violent criminal history." Despite the trial court's emphasis that she gain an understanding of domestic violence, respondent failed to complete the Crossroads Program as required by her case plan.
At a review hearing on 19 April 2012, respondent revealed that she had a new boyfriend, Mr. S., and was pregnant with her fourth child. She presented a copy of a lease on a three-bedroom house but "had torn off the signature lines and the landlord's contact information." The trial court expressed concern about respondent's minimal participation in the Crossroads Program, her "missed visits" with the children, and "her recent attitude change over the past six months."
Respondent attended no further hearings after 19 April 2012. Thereafter, she did not complete the Crossroads Program, failed to schedule regular therapy for Allen, refused to participate in child-parent psychotherapy sessions with Josiah, declined the services of Care Coordination for Children, cancelled multiple visits with the children, and accumulated a substantial arrearage on her $65 monthly child support obligation imposed in March 2012. Respondent gave birth to her fourth child in July of 2012 and named Mr. S. as the father. On 6 July 2012, Mr. S. was jailed on charges of attempted murder and robbery with a dangerous weapon.
On 5 November 2012, the trial court changed Allen and Josiah's permanent plan to adoption and ordered DHHS to pursue termination of respondent and D's parental rights. The court suspended respondent's visitation with the children on 2 May 2013, after she was criminally charged with, inter alia, damaging the windshields of two cars on 18 and 29 November 2012. The court relieved DHHS of further efforts to reunify the children with respondent on 4 December 2013.
DHHS filed a petition to terminate respondent and D's parental rights on 13 November 2012. The trial court concluded an adjudicatory hearing on the petition on 6 March 2014. When the court failed to enter a ruling for several months, the parties signed a consent order declaring a mistrial on 6 August 2014. The order directed DHHS to "calendar this matter . . . at the earliest possible date that is agreeable to all parties."
The trial court held a second hearing on 13 and 14 January 2015. Respondent did not attend the hearing. The court entered its order terminating respondent and D's parental rights on 12 June 2015. The court adjudicated the following four grounds for termination as to respondent: (1) neglect; (2) failure to make reasonable progress to correct the conditions that led to the children's placement outside the home; (3) failure to pay a reasonable portion of the children's cost of care; and (4) dependency. N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (6) (2015). The court further found that termination of respondent and D's parental rights was in Allen and Josiah's best interests.
Respondent appeals from the order terminating her parental rights as to the juveniles, Allen and Josiah.
Counsel for respondent has filed a no-merit brief on her behalf pursuant to N.C. R. App. P. 3.1(d). After "a conscientious and thorough review of the Record on Appeal, verbatim transcript of the hearings and all material in the underlying case files[,]" counsel concludes "that there is no issue of merit on which to base an argument for relief and that this appeal would be frivolous." Counsel asks this Court to conduct an independent examination of the case for possible error. Counsel further shows she advised respondent of her right to file written arguments in support of her appeal and provided respondent with the materials necessary to do so. Respondent has not submitted written arguments of her own.
In addition to seeking review pursuant to Rule 3.1(d), counsel states that several of the trial court's findings of fact are "not entirely supported by the evidence presented during the termination proceeding." She also directs our attention to a potential issue with regard to the district court's adjudication of dependency under N.C. Gen. Stat. § 7B-1111(a)(6). Counsel acknowledges, however, that these issues do not provide a meritorious basis for appeal. See In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006) (holding erroneous findings of fact are harmless if the remaining findings support the trial court's adjudication); In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241, 246 (2005) (holding if any adjudicated ground for termination is valid, the remaining grounds are superfluous).
After careful review, we are unable to find any possible prejudicial error by the trial court. The termination order includes findings of fact "by clear, cogent and convincing evidence" to support at least one statutory ground for termination. At the time DSS filed its petition to terminate her parental rights, respondent had been allowed almost two-and-one-half years after reaching adulthood in which to comply with her case plan and demonstrate an ability to parent the children. See N.C. Gen. Stat. § 7B-1111(a)(2); In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 224-25 (1995) (holding that parent's "limited progress" over three and one-half years "is not reasonable progress"). Respondent instead ceased her cooperation with DHHS and no longer attended review hearings. She stopped visiting the children on 25 February 2013 and instructed the DHHS social worker on 16 July 2013, "[D]on't call me again." The trial court also made appropriate findings on the dispositional factors in N.C. Gen. Stat. § 7B-1110(a) (2013), and did not abuse its discretion in assessing the children's best interests. See generally In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002) (articulating standard of review).
Respondent's appeal is without merit. Accordingly, we affirm the termination order.
AFFIRMED.
Chief Judge MCGEE and Judge STROUD concur.
Report per Rule 30(e).