Opinion
No. COA13–127.
2013-06-4
In the Matter of C.H. & D.H.
Northen Blue, LLP, by Carol J. Holcomb and Samantha H. Cabe for petitioner-appellee, Chatham County Department of Social Services. Peter Wood for respondent-appellant, father. 1
Appeal by respondent-father from orders entered 16 November 2012 by Judge Joseph Moody Buckner in Chatham County District Court. Heard in the Court of Appeals 7 May 2013. Northen Blue, LLP, by Carol J. Holcomb and Samantha H. Cabe for petitioner-appellee, Chatham County Department of Social Services. Peter Wood for respondent-appellant, father.
Amanda Armstrong, for the guardian ad litem.
HUNTER JR., ROBERT N., Judge.
The mother of the juveniles is not a party to this appeal.
Respondent-father appeals from orders terminating his parental rights to C.H. (“Chad”) and D.H. (“Dana”). We affirm.
Pseudonyms are used to protect the identity of the juveniles.
I. Procedural History
On 22 June 2011 Durham County Department of Social Services filed a petition alleging that Chad and Dana, the minor children of respondent-father, were neglected and dependent. The petition alleged that the juveniles were in danger in light of respondent-father's involvement in the drug trade and his possession of an unsecured firearm accessible to the children. The petition further alleged that respondent-father's “house was filthy with old food and clutter; [that] the children were not bathed; [and that] the father asks anyone and everyone to watch his children.” On 7 October 2011 the Durham County District Court adjudicated the juveniles dependent and neglected, but determined it was in the best interests of the children to remain in the custody of their mother under a court-ordered protection plan. The court also transferred venue to Chatham County, where the mother resided. While the children were living with their mother, the Chatham County Department of Social Services (“DSS”) received a report of serious domestic violence in the home of the mother. Specifically, DSS learned that the mother's boyfriend, who was living in the home, had “swung a baseball bat” at the mother, “threatened to burn the house down with the children in it,” and was verbally abusive to the juveniles. On 8 March 2012, the Chatham County District Court found that the children were “exposed to a substantial risk of physical injury,” and entered an order placing the children in the legal and physical custody of DSS. The next day, DSS filed a petition alleging the children to be dependent and neglected. The district court ultimately found the children dependent on 26 April 2012. During this time, respondent-father was incarcerated in federal prison.
The juvenile's mother voluntarily relinquished her parental rights on 19 July 2012. On 10 August 2012 DSS filed petitions to terminate the parental rights of respondent-father to Chad and Dana. After a hearing on 25 October 2012, the trial court terminated respondent-father's parental rights, entering termination orders on 16 November 2012. Respondent-father filed timely notice of appeal.
The trial court entered separate orders for each child. However, both orders contain almost identical findings.
II. Analysis
On appeal, respondent-father challenges several of the trial court's findings of fact on the basis that they were unsupported by clear, cogent, and convincing evidence. Specifically, respondent-father contends that the trial court impermissibly “delegate[d] its fact finding duties” by incorporating court reports and previous orders. Respondent-father additionally alleges that the trial court's findings do not support its conclusion that grounds for termination existed. Finally, respondent-father argues that the trial court abused its discretion in terminating his parental rights. We disagree.
A. Findings of Fact & Grounds for Termination
N.C. Gen.Stat. § 7B–1111(a) (2011) sets out statutory grounds for termination of parental rights. A finding of any one of the separately enumerated grounds is sufficient to support a termination. In re Taylor, 97 N.C.App. 57, 64, 387 S.E.2d 230, 233–34 (1990). In reviewing a trial court's order terminating parental rights, this Court must determine whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings support the trial court's conclusions of law. In re S.N., 194 N.C.App. 142, 146, 669 S.E.2d 55, 58–59 (2008), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009). “The trial court's conclusions of law are fully reviewable de novo by the appellate court.” Id. at 146,669 S.E.2d at 59 (quotation marks and citation omitted).
Respondent-father first argues that three of the trial court's findings of fact are not supported by clear, cogent, and convincing evidence. Specifically, respondent-father asserts that “the court could not simply adopt prior court orders and court reports as findings of fact. The court was required to independently find the facts and could not delegate that authority.” Respondent-father further contends that “[a]ny findings or conclusions based on these incorporated documents [are] insufficient as a matter of law.”
In making this argument, respondent-father relies on In re Harton, 156 N.C.App. 655, 577 S.E.2d 334 (2003), and similar cases. In Harton, our Court acknowledged that the trial court in juvenile proceedings may not simply incorporate the allegations against a parent, but that it must make clear that it has found the ultimate facts necessary to support its conclusions of law based upon its own reasoning and analysis. Id. at 660, 577 S.E.2d at 337. The trial court in Harton did not make sufficient independent findings of fact, and this Court vacated the trial court's permanency planning order, explaining:
[T]he trial court in its findings of fact in the Permanency Planning Review Order found that [the mother] had no intention of separating from [her boyfriend] and adopted DSS and guardian ad litem reports as the remaining facts. The trial court, however, made no findings of fact under the specific criteria provided in section 7B–907(b). By stating a single evidentiary fact and adopting DSS and guardian ad litem reports, the trial court's findings are not specific ultimate facts ... sufficient for this Court to determine that the judgment is adequately supported by competent evidence.
Id. (quotation marks and citation omitted) (alterations in original).
In the case before us, we acknowledge that the trial court took judicial notice of facts contained in a previous order terminating respondent-father's rights to another child, and incorporated by reference reports from DSS and the guardian ad litem, finding “within [them] credible and factually sufficient evidence to support entry of this order.” However, the trial court did not “simply recite allegations” or find “a single evidentiary fact.” Instead, the trial court employed a process of “logical reasoning,” which is evidenced through its having made several independent findings of fact.
We have held that a trial court may consider a DSS report as evidence and incorporate it by reference, so long as the trial court does not use the DSS report as a substitute for its own independent review. In re K.S., 183 N.C.App. 315, 324, 646 S.E.2d 541, 546 (2007); In re D.L., 166 N.C.App. 574, 582–83, 603 S.E.2d 376, 382 (2004). The trial court may also consider other relevant orders and documents in related proceedings. In re J.W., 173 N.C.App. 450, 456, 619 S.E.2d 534, 540 (2005). Accordingly, the trial court's decision to find credible and then subsequently incorporate these documents was permissible and did not result in a delegation of the trial court's fact-finding duty. This argument is without merit.
Although respondent-father claims to challenge several other findings of fact, he advances no other argument to that end. Accordingly, we deem respondent-father's challenges to the other findings of fact abandoned. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (“Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.”).
Respondent-father next argues that the trial court's conclusion that grounds for termination exist is not supported by its findings of fact. We disagree.
A parent's rights to a child may be terminated upon a finding that “[t]he parent has abused or neglected the juvenile.” N.C. Gen.Stat. § 7B–1111(a)(1). 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) (2011).
In determining neglect, a court must consider “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). When a parent does not have custody of the child, “the trial court must also consider evidence of changed conditions in light of the history of neglect by the parent and the probability of a repetition of neglect.” In re Pierce, 146 N.C.App. 641, 651, 554 S.E.2d 25, 31 (2001). Relevant to the determination of probability of repetition of neglect is whether the parent has “made any meaningful progress in eliminating the conditions that led to the removal of [the] children.” In re Leftwich, 135 N.C.App. 67, 72, 518 S.E.2d 799, 803 (1999). Neglect exists where a parent has failed in the past to meet the child's physical and economic needs and it appears that the parent will not, or cannot, correct those inadequate conditions within a reasonable amount of time. In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984). “[T]he trial judge may [also] consider ... a parent's complete failure to provide the personal contact, love, and affection that inheres in the parental relationship.” In re Apa, 59 N.C.App. 322, 324, 296 S.E.2d 811, 813 (1982).
Incarceration, by itself, is insufficient to establish neglect in a termination of parental rights case, but it is relevant to whether a child is neglected. See In re J.K.C., ––– N.C.App. ––––, ––––, 721 S.E.2d 264, 271 (2012). Furthermore, incarceration, standing alone, “is neither a sword nor a shield in a termination of parental rights decision.” See In re C. W., 182 N.C.App. 214, 220, 641 S.E.2d 725, 730 (2007) (quotation marks and citation omitted).
In this case, the trial court made, inter alia, the following findings of fact:
9. Respondent father has a significant criminal history which includes, by his own admission, active membership in a gang for approximately fourteen (14) years.
10. Respondent father was incarcerated from October[ ] 17, 2005 until January 1, 2007 and is now incarcerated as of March 12, 2012 to be released in July, 2013.
11. Respondent father's criminal history which began in 2004, includes convictions for larceny, multiple drug related crimes, and various violence related crimes. Copies of his criminal history record from Durham and Chatham counties as well as police reports were offered into evidence and are incorporated herein as though fully set forth as findings of fact.
12. Respondent father has a history of substance abuse. He has not participated in drug treatment, although he reports being substance free while serving time in prison.
...
16. Respondent father's criminal history, his drug use, his incarcerations and his inability to parent his children during the brief period they were in his care support a finding of neglect and support a finding that his rights should be terminated.
The record, testimony of the social worker at the hearing, and the reports of DSS and the guardian ad litem incorporated by the trial court in its order detail respondent-father's substantial criminal history, gang involvement, substance abuse and mental health history, and numerous incarcerations. The order also noted respondent-father's history of involvement with DSS, the prior termination of his parental rights to another child, and the previous dependency and neglect adjudications regarding Chad and Dana.
The DSS report, incorporated into the trial court's order, notes that respondent-father did not participate in court-ordered substance abuse treatment prior to his most recent incarceration. Additionally, the report discloses that respondent-father has made only three attempts to write to his children since the beginning of his incarceration, and that one of these letters was ultimately not delivered “due to the content not being appropriate for the children.” These attempts at correspondence also seemed largely to be in response to correspondence initiated by the foster care social worker, with two of the letters being written within a month of the termination hearing. The report also observes that respondent-father has a history of non-payment of child support. Although the trial court made a finding that respondent-father was participating in a few positive programs while incarcerated, there was no other evidence presented regarding any changed conditions.
Accordingly, we hold the trial court did not err in concluding that grounds existed to terminate respondent-father's rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(1). Because we hold that the trial court properly found a sufficient basis for termination of parental rights under Section 7B–1111(a)(1), we need not address respondent-father's arguments as to the other two grounds for termination found by the trial court. See In re B.S.D.S., 163 N .C.App. 540, 546, 594 S.E.2d 89, 93–94 (2004) (“Having concluded that at least one ground for termination of parental rights existed, we need not address the additional ground ... found by the trial court.”).
B. Termination of Parental Rights
Respondent-father lastly argues that the trial court abused its discretion when it terminated his parental rights. Specifically, respondent-father contends that “[t]he court and DSS had not given [him] a reasonable chance to work towards reunification.”
Once a court determines that one or more grounds for terminating a parent's rights exists, the court then proceeds to decide whether terminating the parent's rights is in the juvenile's best interest. N.C. Gen.Stat. § 7B–1110(a) (2011). The court's decision is discretionary and reviewable only for an abuse of discretion. In re Anderson, 151 N.C.App. 94, 98, 564 S.E.2d 599, 602 (2002). “A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324 S.E .2d 829, 833 (1985). The “polar star” in termination of parental rights proceedings is the best interests of the child. In re J.H.K., 365 N.C. 171, 176, 711 S.E.2d 118, 121 (2011).
In deciding whether termination of parental rights is in the best interests of the juvenile,
the court shall consider the following criteria and make written findings regarding the following that are relevant: (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). The weighing of these factors is the province of the trial court, and it may assign more weight to one or more factors over the others. In re C.L.C., 171 N.C.App. 438, 448, 615 S.E.2d 704, 709–10 (2005), aff'd per curiam, 360 N.C. 475, 628 S.E.2d 760 (2006).
Here, the trial court in its order explicitly noted that it considered the above enumerated factors, and made the following findings:
It is in the best interest of the minor [children] to terminate the parental rights of [the] natural parent named above. In support of this ultimate finding of fact, the court specifically finds as follows:
a. This court references and hereby incorporates the Findings of Fact [referenced] above.
b. Termination of Respondent Father's parental rights is necessary to implement the permanent plan of adoption.
c. Terminating Respondent father's parental rights is the only barriers [sic] to the adoption of the [children] and those barriers can be overcome in a reasonable period of time.
d. [Chad] is almost five (5) and [Dana] is three and one-half (3 1/2).
e. The children are placed with a foster family who is considering the possibility of adopting the children.
The juveniles have been in the care of a foster family since 3 April 2012. Both the termination order and the nonsecure custody order note that reasonable efforts were made to pursue a kinship placement. These efforts were ultimately unsuccessful.
f. The children have not seen Respondent father since early March, 2012. The children rarely mention Respondent father and there does not appear to be a bond between the children and Respondent father.
g. Both children exhibit emotional problems but can be comforted by the foster parents.
h. Both children appear happy and comfortable in the current foster home.
i. If the current foster parents do not adopt the children, it is likely that they will be adopted.
It is therefore clear that the trial court considered all of the statutory factors, particularly the positive relationship between the children and the foster parents and the likelihood of adoption by the foster parents. The court concluded that termination of parental rights would aid in the permanent plan of adoption and that termination would be in the children's best interest. Given respondent-father's history, inability to care for his children in the past, and the lack of significant evidence of changed conditions, we find nothing indicating the trial court abused its discretion.
Accordingly, the order of the trial court is
AFFIRMED. Judges McGEE and STEPHENS, concur.
Report per Rule 30(e).