Opinion
No. COA12–1042.
2013-03-5
In the Matter of A.N.R. and L.T.M.
Wake County Attorney's Office, by Deputy County Attorney Roger A. Askew, for petitioner-appellee Wake County Human Services. Womble Carlyle Sandridge & Rice, LLP, by Theresa M. Sprain and Carolyn C. Pratt, for the guardian ad litem.
Appeal by Respondent-mother from order entered 19 June 2012 by Judge Margaret P. Eagles in Wake County District Court. Heard in the Court of Appeals 30 January 2013. Wake County Attorney's Office, by Deputy County Attorney Roger A. Askew, for petitioner-appellee Wake County Human Services. Womble Carlyle Sandridge & Rice, LLP, by Theresa M. Sprain and Carolyn C. Pratt, for the guardian ad litem.
Mary McCullers Reece for respondent-appellant mother.
HUNTER, JR., ROBERT N., Judge.
Respondent-mother appeals from an order terminating her parental rights to her children, A.N.R. and L.T.M, due to: (i) neglect (N.C.Gen.Stat. § 7B–1111(a)(1) (2011)), (ii) willfully leaving the children in foster care for more than twelve months without showing progress in correcting the conditions that led to their removal (N.C.Gen.Stat. § 7B–1111(a)(2) (2011)), and (iii) willfully failing to pay the cost of care for the children after leaving them in foster care despite being physically and financially able (N.C.Gen.Stat. § 7B–1111(a)(3) (2011)). On appeal, Respondent-mother requests this Court to conduct a no-merit review of the record pursuant to N.C. R.App. P. 3.1(d). Upon review, we affirm the trial court's order.
I. Facts & Procedural History
Respondent-mother is the parent of A.N.R. and L.T.M. (collectively, “the children”). On 5 October 2010, Wake County Human Services (“WCHS”) filed a juvenile petition alleging the children were neglected. It also took non-secure custody of the children.
A. 10 November 2010—Adjudicatory and Disposition Hearing
On 10 November 2010, an adjudicatory and disposition hearing was held in Wake County District Court. At the hearing, Respondent-mother, WCHS, the guardian ad litem for the children, and the children's fathers stipulated to the following findings of fact.
Child Protective Services first became involved with the family in March 2000 when it placed one of Respondent-mother's older children in the custody of his paternal grandparents. On 23 January 2007, WCHS became involved with the family due to Respondent-mother's alcohol abuse and mental health issues. On 10 July 2007, WCHS received a report that L.T.M.'s father hit Respondent-mother's son and assaulted Respondent-mother while he was intoxicated. On 17 December 2007, L.T.M.'s father assaulted Respondent-mother in front of her children. These problems continued for the next two to three years. Additionally, on 11 June 2010, Respondent-mother was charged with DWI after getting into a car accident with the children in the car. Because of these events, WCHS began regular in-home services.
Respondent-mother has three other children not involved in the instant case.
By July 2010, the family's conditions had improved slightly. Respondent-mother had completed substance abuse assessments and had maintained her job with a mobile detailing service for over two years. Respondent-mother also underwent a mental health assessment, where she was diagnosed with bipolar disorder and alcohol abuse.
On 23 September 2010, Respondent-mother was fired from her job. On 24 September 2010, Respondent-mother got into another fight with L.T.M.'s father while both parties were intoxicated. During the fight, Respondent-mother's son called 911. Subsequently, a social worker came to the family's home on 28 September 2010. The social worker noticed bruising on Respondent-mother's arms from the 24 September 2010 fight. Despite the social worker's request, Respondent-mother declined to seek a domestic violence protective order.
At a Team Decision Making Meeting on 1 October 2010, Respondent-mother told a social worker she was not taking her medication. She also said she was being evicted. At the meeting, the social worker smelled alcohol on Respondent-mother's breath.
The trial court adjudicated the children neglected based on these factual findings. It also (i) placed the children in custody of WCHS; (ii) required all the parents to meet certain requirements, such as substance abuse treatment and drug/alcohol screens; and (iii) set up a visitation schedule.
B. 2 August 2011—Permanency Planning Hearing
On 2 August 2011, a placement review and permanency planning hearing was held in Wake County District Court. The trial court reviewed a court summary and guardian ad litem report. Based on the information presented, the trial court made the following findings of fact.
Respondent-mother had not participated in mental health treatment, substance abuse treatment, domestic violence victim's services, or parenting education, as required by the 10 November 2010 order. Additionally, Respondent-mother had not visited her children for five months because she did not submit to random drug and alcohol screens or attend treatment sessions. Lastly, Respondent-mother reported recent incidents of domestic violence from L.T.M.'s father.
Based on these facts, on 19 August 2011 the trial court determined “return of the children to their home would be contrary to the children's best interests.” Specifically, it concluded that efforts to reunify the children with Respondent-mother would be “futile or inconsistent with the children's safety” and recognized the “need for a safe home within a reasonable time.” As a result, it changed the permanent plan for the children from reunification to adoption. Respondent-mother received conditions she must satisfy to reunite with her children, but the trial court instructed WCHS to “make reasonable efforts” to pursue adoption.
C. 4 May 2012—Termination of Parental Rights Hearing
On 17 January 2012, WCHS filed a motion to terminate Respondent-mother's parental rights due to: (i) neglect (N.C.Gen.Stat. § 7B–1111(a)(1)); (ii) failure to make reasonable progress (N.C.Gen.Stat. § 7B–1111(a)(2)); (iii) failure to pay a reasonable portion of the cost of care (N.C. Gen.Stat. § 7B–1111 (a)(3)); and (iv) willful abandonment (N.C. Gen.Stat. § 7B–1111 (a)(7)).
WCHS also sought to terminate the parental rights of the children's fathers. L.T.M.'s father voluntarily relinquished his parental rights on 3 May 2012. The trial court terminated A.N.R.'s father's parental rights along with Respondent-mother's rights; however, he did not appeal and is therefore not a party to the instant case.
On 4 May 2012, Wake County District Court held a termination hearing. It heard testimony from Respondent-mother, a WCHS social worker, a deputy sheriff, and the children's guardian ad litem. Based on the evidence presented, the trial court made, inter alia, the following factual findings.
Respondent-mother started attending mental health treatment sessions on 13 September 2011, but only regularly attended beginning 29 March 2012. Additionally, Respondent-mother alleged she had been sober since Thanksgiving 2011, but she told police she had been drinking at least once when they were called to her house for domestic violence issues. She also refused to submit to drug screens on all but one occasion. When she took a drug screen on 28 January 2011, she tested positive for marijuana.
Moreover, the Wake County Sheriff's Department was called to Respondent-mother's home twelve times during 2012 for domestic violence. During one of these incidents, Respondent-mother was taken to the hospital because L.T.M.'s father had hit or kicked her in the stomach while she was pregnant. Despite law enforcement's advice and previous court orders, Respondent-mother has not sought domestic violence victim's services.
Although Respondent-mother testified she was currently employed, she provided no verifying documentation. She has lived in at least six different locations during the instant case's pendency, staying in no location longer than six months. At the time of the termination hearing, she lived with L.T.M.'s father and paternal grandmother. She said she plans to move into a different house owned by L.T.M.'s paternal grandmother.
The trial court also noted several particular incidents during Respondent-mother's supervised visitation with her children. For instance, on 1 November 2010, a sheriff's deputy had to end the visit early and escorted Respondent-mother from the building because she “appeared to be intoxicated in that she was unsteady on her feet and her speech was slurred.” When Respondent-mother learned her son was going to a foster home that night, she told him, “I was in foster care. I was molested and abused there.”
On 7 March 2011, a social worker believed Respondent-mother was intoxicated during a supervised visitation because Respondent-mother was slurring her speech and unsteady on her feet. After Respondent-mother yelled at the social worker, she was asked to leave. As Respondent-mother left the building, she could be heard screaming obscenities at the social worker from the parking lot. Respondent-mother's visitation was suspended after this incident.
During the children's time in foster care, Respondent-mother has provided no financial support, although she has provided several articles of clothing which were in too poor a condition to use.
After reviewing all the evidence, the trial court determined the facts satisfied three grounds for termination of parental rights: (i) neglect; (ii) failure to make reasonable progress; and (iii) failure to pay cost of care. SeeN.C. Gen.Stat. § 7B–1111 (a)(1), (a)(2), and (a)(3) (2011). It then concluded it was in the best interest of A.N.R. and L.T.M. to terminate Respondent-mother's parental rights. Based on these conclusions, the trial court terminated Respondent-mother's parental rights to A.N.R. and L.T.M. on 19 June 2012. On 29 June 2012, Respondent-mother filed timely notice of appeal.
II. Jurisdiction & Standard of Review
This Court has jurisdiction to hear the instant case pursuant to N.C. Gen.Stat. § 7B–1001(a)(6) (2011) (stating that “appeal of a final order of the court in a juvenile matter shall be made directly to the Court of Appeals” when the order “terminates parental rights.”)
There is a two-step process in a termination of parental rights proceeding. In the adjudicatory stage, the trial court must establish that at least one ground for the termination of parental rights listed in [N.C. Gen.Stat. § 7B–1111] exists.... Once one or more of the grounds for termination are established, the trial court must proceed to the dispositional stage where the best interests of the child are considered. There, the court shall issue an order terminating the parental rights unless it further determines that the best interests of the child require otherwise.
In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001) (internal citations omitted).
For the trial court's adjudicatory determination, “[t]he standard for appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings of fact support its conclusions of law.” In re C.C., 173 N.C.App. 375, 380, 618 S.E.2d 813, 817 (2005). Clear, cogent and convincing evidence requires more proof than the “preponderance of the evidence” standard but less than the “beyond a reasonable doubt” standard. Bost v. Van Nortwick, 117 N.C.App. 1, 14, 449 S.E.2d 911, 918 (1994).
The “clear, cogent and convincing” standard is synonymous with the “clear and convincing” standard used in some cases. Blackburn, 142 N.C.App. at 610, 543 S.E.2d at 908.
We review adjudicatory conclusions of law de novo. In re D.H., 177 N.C.App. 700, 703, 629 S.E.2d 920, 922 (2006). “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quotation marks and citation omitted).
We review the trial court's dispositional “best interests of the child” determination for abuse of discretion. See In re S.F., 198 N.C.App. 611, 614, 682 S.E.2d 712, 715–16 (2009); In re A.R.H .B., 186 N.C.App. 211, 218, 651 S.E.2d 247, 253 (2007). “Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
III. Analysis
Respondent-mother's counsel has filed a no-merit brief pursuant to N.C. R.App. P. 3.1(d) and N.C. Gen.Stat. § 7B–1001 (2011) which states: (i) she has made “a conscientious and thorough review of the record on appeal”; and (ii) after extensive review of the relevant law, she concludes “this appeal presents no issue of merit on which to base an argument for relief.” Pursuant to North Carolina Rule of Appellate Procedure 3.1(d), she requests this Court to conduct an independent examination of the case.
In accordance with Rule 3.1(d), counsel also sent Respondent-mother a letter on 20 September 2012 advising her of: (i) counsel's inability to find error; (ii) counsel's request for this Court to conduct an independent review of the record; and (iii) Respondent-mother's right to file her own arguments directly with this Court during the pendency of the appeal. Respondent-mother has not filed her own written arguments.
Respondent-mother's counsel directs our attention to three potential issues: (i) whether the trial court erred in concluding Respondent-mother neglected the children; (ii) whether the trial court erred in concluding Respondent-mother willfully left the children in foster care for more than twelve months without showing reasonable progress in correcting the conditions that led to the children's removal; and (iii) whether the trial court erred in concluding Respondent-mother willfully failed to pay for the children's cost of care for six months despite being physically and financially able. After careful review, we affirm the trial court's order.
To terminate on grounds of neglect pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) (2011), the trial court must find that the juvenile is one who “does not receive proper care, ... has been abandoned, ... is not provided necessary remedial care[,] or ... lives in an environment injurious to the juvenile's welfare.” N.C. Gen.Stat. § 7B–101(15) (2011).
To find grounds for termination under N.C. Gen.Stat. § 7B–1111(a)(2) (2011), the trial court must conclude: (i) the “child has been willfully left by the parent in foster care or placement outside the home for over twelve months” and (ii) “as of the time of the hearing, ... the parent has not made reasonable progress under the circumstances to correct the conditions which led to the removal of the child.” In re O.C., 171 N.C.App. 457, 464–65, 615 S.E.2d 391, 396 (2005). Under the first issue, “willfulness” may be found when “the parent, recognizing her inability to care for the children, voluntarily leaves the children in foster care.” In re Shepard, 162 N.C.App. 215, 225, 591 S.E.2d 1, 7 (2004).
To find grounds for termination under N.C. Gen.Stat. § 7B–1111(a)(3) (2011), the trial court must conclude that “the parent, for a continuous period of six months next preceding the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.” Specifically, the trial court must find that the parent had the “ability to pay support” during the relevant period. In re T.D.P., 164 N.C.App. 287, 289, 595 S.E.2d 735, 737 (2004).
In the present case, after careful review of the record and transcripts, we affirm the trial court's order.
First, The trial court's findings of fact are supported by clear, cogent and convincing evidence. See In re C.C., 173 N.C.App. at 380, 618 S.E.2d at 817. Moreover, upon de novo review, we determine the findings of fact support at least one ground for termination under N.C. Gen.Stat. § 7B–1111(a). See In re Blackburn, 142 N.C.App. at 610, 543 S.E.2d at 908. Lastly, the trial court did not abuse its discretion in determining that termination of Respondent-mother's parental rights is in the best interests of A.N.R. and L.T.M. See N.C. Gen.Stat. §§ 7B1110, 7B–1111 (2011).
We note that in its application of N.C. Gen.Stat. § 7B–1111(a)(3), the trial court made no factual findings regarding Respondent-mother's income or ability to pay for her children's cost of care. However, even if this constitutes error, the error was not prejudicial because we determine the findings of fact satisfied two other grounds for termination. See In re J.D.L., 199 N.C.App. 182, 188, 681 S.E.2d 485, 490 (2009) (holding that “[a] finding of any one of the grounds enumerated [in N.C. Gen.Stat. § 7B–1111], if supported by competent evidence, is sufficient to support a termination of parental rights” (quotation marks and citation omitted)(second alteration in original)).
IV. Conclusion
We conclude the trial court did not commit prejudicial error in deciding to terminate Respondent-mother's parental rights to A.N.R. and L.T.M. Therefore, we affirm the trial court's order.
AFFIRMED. Judges STEELMAN and GEER concur.
Report per Rule 30(e).