Opinion
No. COA15-809
04-05-2016
IN RE: A.L.M., M.T.M., Minor Children.
Robert A. Lester for petitioner-appellee. Mark L. Hayes for respondent-appellant. Administrative Office of the Courts, by GAL Appellate Counsel Matthew D. Wunsche, for guardian ad litem-appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Rowan County, Nos. 12 JT 146, 147 Appeal by respondent from order entered 26 March 2015 by Judge Charlie Brown in Rowan County District Court. Heard in the Court of Appeals 7 March 2016. Robert A. Lester for petitioner-appellee. Mark L. Hayes for respondent-appellant. Administrative Office of the Courts, by GAL Appellate Counsel Matthew D. Wunsche, for guardian ad litem-appellee. GEER, Judge.
Respondent mother appeals from the trial court's order terminating her parental rights to her minor children A.L.M. ("Amy") and M.T.M. ("Martin"). We hold that the trial court's findings of fact support its conclusion that grounds exist to terminate respondent's parental rights based on neglect, pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (2015). While respondent contends that the trial court should not have found that a repetition of neglect was probable because her children were faring so well in their placement with relatives, respondent's argument is beside the point. The trial court applied the proper test, and its unchallenged findings amply support its determination that if the children were returned to respondent, a repetition of the neglect that resulted in the initial neglect adjudication is probable. Because we hold that grounds existed to terminate respondent's parental rights and we hold that respondent has failed to show that the trial court abused its discretion in concluding that termination of respondent's parental rights is in the children's best interests, we affirm.
We use pseudonyms to protect the juveniles' privacy and for ease of reading. Martin's biological father is deceased. The parental rights of Amy's biological father, also a respondent, were terminated. He is not a party to this appeal.
Facts
On 4 October 2012, the Rowan County Department of Social Services ("DSS") filed a juvenile petition alleging that respondent's children were neglected and took the children into nonsecure custody. According to the petition, DSS had been involved with respondent since 2007 due to issues with the children's hygiene and dental care, poor conditions of the home, and respondent's drug use. The petition alleged that respondent admitted to suffering from mental health issues related to stress and depression. Respondent placed the children in a kinship placement with a family friend, "Mrs. R," in February 2012. The petition also alleged that on 3 August 2012, DSS received a report of neglect by respondent based on improper discipline occurring during an overnight visit with respondent. Finally, the petition alleged that the children could not safely return to respondent's custody due to her untreated substance abuse and mental health issues and continued failure to follow through with DSS services.
"Mrs. R" is a pseudonym.
A hearing was held on DSS's petition on 1 November 2012. Respondent stipulated to a finding of neglect, and the trial court entered an order adjudicating Amy and Martin as neglected on 6 December 2012. The trial court ordered respondent to comply with substance abuse treatment and with all recommendations from her mental health assessment. Respondent also was ordered to obtain employment, complete a parenting program, to obtain and maintain safe, sanitary, and stable housing, and to remain free from substance abuse.
On 16 July 2013, the trial court entered a permanency planning order changing Martin and Amy's permanent plan from reunification to a concurrent plan of reunification and custody or guardianship with a relative or court-approved caretaker. The trial court found that respondent continued to test positive for drugs in March 2013, demonstrated a lack of follow-through with services, and made false statements to the social worker regarding her vocational rehabilitation and education. The court also found that although respondent completed a parenting course, DSS was not able to verify that respondent was using what she learned due to her infrequent visitation.
On 16 May 2014, the trial court entered a permanency planning review order changing the children's permanent plan to adoption. The court found that respondent continued to demonstrate her lack of follow-through with services throughout her involvement with DSS and directed DSS to file a petition to terminate respondent's parental rights within 60 days.
DSS filed a petition to terminate respondent's parental rights on 3 July 2014. Following a hearing, the trial court entered an order on 26 March 2015 concluding that grounds existed to terminate respondent's parental rights to Amy and Martin based on neglect and her failure to make reasonable progress towards correcting the conditions that led to removal of the children, pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1) and (2). The trial court also concluded that termination of respondent's parental rights was in the best interests of Amy and Martin. Respondent timely appealed to this Court.
Discussion
The termination of parental rights process involves two stages. At the first adjudicatory stage during which the trial court determines whether grounds for termination of parental rights exist, " '[t]he standard of review [for this Court] . . . is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law.' " In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004) (quoting In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984)). "If the trial court's findings of fact are supported by ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary." In re S.C.R., 198 N.C. App. 525, 531, 679 S.E.2d 905, 909 (internal quotation marks omitted), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009). Unchallenged findings of facts "are conclusive on appeal and binding on this Court." Id. at 532, 679 S.E.2d at 909. We review the trial court's conclusions of law de novo. In re S.N., X.Z., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
"If the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child." In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). On appeal, "[t]he court's determination of the juvenile's best interest will not be disturbed absent a showing of an abuse of discretion." In re E.M., 202 N.C. App. 761, 764, 692 S.E.2d 629, 630 (2010).
I
Respondent first contends that the trial court erred in concluding that grounds existed to terminate her parental rights based on neglect. She argues that the trial court improperly found that there was a probability of a repetition of neglect if Amy and Martin were returned to her care because placement of the children with Mr. and Mrs. R. had eliminated the conditions that led to the initial adjudication of neglect. Respondent has, however, misapplied the controlling test.
Pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), a trial court may terminate parental rights when the parent has neglected the juvenile. A neglected juvenile is
[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) (2015).
Generally, "[n]eglect must exist at the time of the termination hearing[.]" In re C.W. & J.W., 182 N.C. App. 214, 220, 641 S.E.2d 725, 729 (2007). However, where the parent does not have custody of the child at the time of the termination hearing, "parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to her parents." In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000). The court must take into consideration any evidence of changed conditions, but "[t]he determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984).
Respondent argues the children were not at risk of repetition of the prior neglect because she voluntarily placed the children in a kinship placement that addressed the neglect issues. She compares her situation to that of an incarcerated parent and relies on In re C.W., 182 N.C. App. at 220, 641 S.E.2d at 730, in arguing that when it is not possible for a parent to provide care, parental rights cannot be terminated if the children's previously neglected needs are addressed through foster placement. Thus, she contends, "the court had no basis for finding neglect based on the possibility of returning the children to [respondent's] home, when the children were not going to be returned to that home in any case."
However, "when, as here, a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, 'requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible.' " 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 re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003)). Thus, when determining neglect based on repetition of neglect, a court must consider what would happen if the children were returned to the parent's care, not if they were to continue in a beneficial alternative placement. See id. ("In those circumstances, a trial court may 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." (internal quotation marks omitted)); see also In re Beasley, 147 N.C. App. 399, 404-05, 555 S.E.2d 643, 647 (2001) (" '[P]arental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [his or] her parents.' " (emphasis added) (quoting In re Reyes, 136 N.C. App. at 815, 526 S.E.2d at 501)).
Respondent's attempt to analogize her situation to that of the incarcerated respondent in In re C.W. is misplaced. In In re C.W., this Court reversed the trial court's termination of parental rights because its conclusion of neglect was based on unsupported findings that the incarcerated respondent had failed to maintain contact with his children while in prison when, in fact, the evidence showed otherwise. 182 N.C. App. at 222-24, 641 S.E.2d at 731-32. The holding does not suggest that a trial court is generally precluded from terminating parental rights based on neglect when a child is receiving adequate care in a foster placement during a period in which a parent is incapable of providing that care. Such a holding would contradict the controlling authority set out in In re Reyes and In re L.O.K. Under the controlling case law, the trial court properly based its finding of neglect on the likelihood of repetition of neglect if Amy and Martin were to return to respondent's care and properly did not, in making the neglect determination, consider the care the children receive in their current kinship placement.
Respondent also argues that her substance abuse and mental health issues were not a basis for the prior adjudication of neglect and, therefore, could not be a basis for termination of parental rights based on neglect. However, Finding of Fact No. 8 states that the "[i]dentified concerns at the time the juvenile petition was filed included excessive spanking of her daughter . . . (leaving whelps [sic]), dental and hygiene issues, positive drug screens for cocaine and marijuana, a lack of education and employment, and mental health issues including depression." Respondent does not challenge this finding of fact, and it is now binding on appeal. Contrary to respondent's assertion, this finding shows that respondent's substance abuse and mental health issues were a factor in the original adjudication of neglect.
The remaining unchallenged findings of fact establish that at the time of the termination hearing, respondent continued to have substance abuse issues, showed minimal progress on her case plan, and continuously demonstrated her lack of follow through with services throughout her involvement with DSS. Respondent was discharged from her substance abuse treatment due to poor attendance and positive drug screens, was deceitful with DSS, and was unemployed. Her living environment "remain[ed] a safety and well-being concern due to [respondent's] demonstrated unwillingness to seek services to help with her substance abuse issues."
Given these binding findings of fact, the trial court did not err in determining there was a likelihood of a repetition of neglect if the juveniles were returned to respondent's care. Therefore, the trial court properly concluded that grounds existed to terminate respondent's parental rights based on neglect.
Because the trial court properly concluded at least one ground existed to terminate respondent's parental rights, we need not address respondent's contentions regarding the trial court's conclusion, pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), that grounds existed to terminate parental rights because respondent left her children in foster care for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances had been made in correcting those conditions which led to the removal of the children. See In re N.T.U., ___ N.C. App. ___, ___, 760 S.E.2d 49, 57 ("In termination of parental rights proceedings, the trial court's finding of any one of the . . . enumerated grounds is sufficient to support a termination." (internal quotation marks omitted)), disc. review denied, ___ N.C. ___, 763 S.E.2d 517 (2014).
II
Respondent next argues that the trial court abused its discretion in concluding that terminating her parental rights was in the best interests of the juveniles because the trial court should have instead formalized the kinship placement into a guardianship in order to avoid potential adoption risks. We disagree.
In determining whether a termination of parental rights is in the juvenile's best interests, the trial court must consider:
(1) The age of the juvenile.N.C. Gen. Stat. § 7B-1110(a)(1)-(6) (2015). The trial court must make written findings addressing "only those factors 'that are relevant.' " In re D.H., 232 N.C. App. 217, 221, 753 S.E.2d 732, 735 (2014) (quoting In re J.L.H., 224 N.C. App. 52, 59, 741 S.E.2d 333, 338 (2012)).
(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.
Here, the trial court made numerous findings of fact demonstrating that it properly considered the statutory factors:
2. [Amy] is twelve years old, and [Martin] will turn fourteen years old next month. The [Rs] demonstrate ongoing support for the children, including advocating on their behalf when necessary and communicating regularly with their services providers. The children are well adjusted and continue to thrive and show progress in the home of Mr. and Mrs. [R].
3. [Amy] and [Martin] have a healthy attachment to Mr. and Mrs. [R], as both children are bonded with the family. [Amy] and [Martin] state that they feel
loved and cared for by the [Rs] and wish to live with Mr. and Mrs. [R] in a forever home. They call the [Rs] "grandma and papa." . . .
. . . .
5. Mr. and Mrs. [R] have expressed a desire and commitment towards providing permanence for [Amy], having become familiar with her needs, and all parties have formed a strong and healthy bond with each other. The [Rs] have maintained close contact with the RCDSS and are willing to adopt [Amy], not [Martin]. . . . The likelihood of adoption of [Amy] by the [Rs] is extremely high.
6. Based on [Martin's] behavioral challenges in school and Mrs. [Rs] concerns about leaving work on a constant basis due to his behavioral issues, the [Rs] are asking for the RCDSS to explore other options for [Martin]. Mr. [R] is also concerned about Mrs. [R] when he is away from the home due to his work. . . . The [Rs] are willing to care for [Martin] until another placement is identified.
7. GALs Orndorff located the juveniles' maternal grandfather, George [M], despite [respondent] telling them that Mr. [M] lived in Atlanta. Mr. [M] indicated that [respondent] has been by his home on several occasions and stated on each occasion that she was working towards reunification with the juveniles. . . .
8. George [M] is willing to adopt [Martin]; however, he has not seen [Martin] in quite some time. Mr. [M] states that he used to have a relationship with the children and took them to church in the past. He knows the children, and the children know him as their grandfather. Mr. [M] has attempted visits with
[Martin] since December 2014, but he has been unable to visit due to sickness, his work schedule, and holiday conflicts. [Martin] and Mr. [M] have a familial bond, which has the potential to grow and strengthen swiftly as they begin to spend time together.
. . . .
11. Mr. [M] understands that [Martin] has been diagnosed with Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, and Mild Intellectual Disability. He believes that he can handle [Martin's] negative behaviors in school, stating that he was once like [Martin] and understands [Martin's] challenges. He plans to take [Martin] fishing as well as to play basketball during visits in the near future.
12. The juveniles have spoken with GALs Orndorff and Social Work [sic] Raih and have expressed their excitement of [Martin] living with and being adopted by Mr. [M] and [Amy] being adopted by the [Rs].
13. Mr. [M] and Mrs. [R] have agreed to keep the juveniles in touch with each other as well as with [respondent].
. . . .
15. There is a strong bond and connection between [respondent] and the juveniles, but the bond is weakened by [respondent's] failure to keep her word to them regarding visits, gifts, and outings. [Respondent] interacts with the children more as a friend or companion than a mother.
16. Terminating the parental rights of the respondents is necessary to accomplish the best permanent plan for the juveniles, which is adoption.
"George M" or "Mr. M" is a pseudonym.
Respondent only challenges three of the court's findings of fact as unsupported by competent evidence. First, respondent challenges Finding of Fact No. 3, which states in pertinent part that the juveniles "wish[ed] to live with Mr. and Mrs. [R] in a forever home." Respondent contends that there was no evidence supporting this finding and that the record evidence rather indicated that the juveniles would not choose permanence if it jeopardized their relationship with respondent. However, Finding of Fact No. 13, which is unchallenged, indicates Mrs. R's and Mr. M's intent to keep the juveniles in touch with each other and respondent. This finding tends to undercut respondent's insinuation that adoption will interfere with the juveniles' interests in maintaining a relationship with their mother. Further, although the evidence did not include a reference to a "forever home," evidence supporting this finding includes testimony that Amy indicated to the social worker that she wanted to continue living with the Rs, viewed herself as part of the family, and loved them very much. Because the "best interests" portion of the order was based on findings that only Amy would be adopted by the Rs, it is immaterial that the portions of Finding of Fact No. 3 relating to Martin's desires with respect to the Rs are unsupported by evidence.
Respondent also challenges part of Finding of Fact No. 8 stating that "[Martin] and [his maternal grandfather] have a familial bond, which has the potential to grow and strengthen swiftly as they begin to spend time together." However, respondent did not challenge the findings that acknowledge Martin and his grandfather have not seen each other in "some time," but that they used to have a relationship in the past and Martin knows him as his grandfather. Moreover, the social worker also testified that Martin said that he would like to live with his grandfather and participate in activities with his grandfather, such as fishing. This evidence and the unchallenged findings support Finding of Fact No. 8 and are sufficient to show that the trial court properly considered the quality of the relationship between Martin and his grandfather in determining whether termination was in the juvenile's best interests.
Finally, respondent argues that Finding of Fact No. 12 is not supported by the evidence since the children did not express their excitement about being adopted, but rather that they were excited to live with the Rs and Mr. M. We note that even if the record evidence failed to reference "excitement" about being adopted, the evidence and the remaining unchallenged findings support the essence of that finding that the children wanted to live in their prospective adoptive homes.
We do not believe that the fact that the trial court's findings went beyond the literal words used by witnesses establishes an abuse of discretion. Given the trial court's findings related to the statutory factors -- including the juveniles' ages, the likelihood of their adoption, the quality of the relationship between the juveniles and their prospective adoptive placement, their bond with respondent, and the fact termination is necessary for the permanent plan of adoption -- we hold that the trial court's conclusion that it was in the best interests of the juveniles to terminate respondent's parental rights was not manifestly unsupported by reason and that the trial court did not abuse its discretion. See In re S.C.R., 198 N.C. App. at 536, 679 S.E.2d at 912 (holding that trial court's findings reflected reasoned decision based upon statutory factors listed in N.C. Gen. Stat. § 7B-1110(a) and that, therefore, trial court did not abuse its discretion in determining termination of parent's parental rights was in best interests of child).
AFFIRMED.
Judges ELMORE and DIETZ concur.
Report per Rule 30(e).