Opinion
No. COA12–1032.
2013-02-19
In the Matter of F.M. and T.M.
Twyla Hollingsworth–Richardson for petitioner-appellee Mecklenburg County Department of Social Services, Youth & Family Services. Leslie Rawls for respondent-appellant.
Appeal by respondent from order entered 25 May 2012 by Judge Regan A. Miller in Mecklenburg County District Court. Heard in the Court of Appeals 30 January 2013. Twyla Hollingsworth–Richardson for petitioner-appellee Mecklenburg County Department of Social Services, Youth & Family Services. Leslie Rawls for respondent-appellant.
Melanie Stewart Cranford for guardian ad litem.
ERVIN, Judge.
Respondent–Mother Nancy M. appeals from an order terminating her parental rights in F.M. and T.M. On appeal, Respondent–Mother argues that the trial court's order contains findings of fact and conclusions of law made in violation of the principles of res judicata and collateral estoppel and that the “evidence does not support [the trial court's] findings of fact or conclusions of law” to the effect that her parental rights in Fay and Ted were subject to termination based upon neglect, a failure to make reasonable progress in addressing the issues that led to the removal of Fay and Ted from her home, her failure to pay a reasonable portion of the cost of the children's care, and the fact that her parental rights in other children had been terminated coupled with her inability to provide a safe home for the children. After careful consideration of Respondent–Mother's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
For ease of reading and to protect their identities, F.M. will be referred to as “Fay” and T.M will be referred to as “Ted” for the remainder of this opinion.
I. Factual Background
On 18 August 2008, the Mecklenburg County Department of Social Services filed a petition alleging that Fay and Ted were neglected and dependent juveniles. The petition alleged that DSS had received a referral in December 2007 asserting that Fay had unexplained bruises and broken skin on her face; that Respondent–Mother suffered from bipolar disorder which was not effectively controlled by medication; that Respondent–Mother used marijuana; and that Respondent–Mother's parental rights in two of her six children had been previously terminated in Pennsylvania. On the same day, Fay and Ted were taken into DSS custody pursuant to a non-secure custody order. On 15 October 2008, Fay and Ted were adjudicated neglected and dependent juveniles.
On 9 February 2009, the trial court adopted a plan of reunification for the family and specified certain conditions that needed to be met in order for the children to be returned to Respondent–Mother's home. Among other things, Respondent–Mother's court-approved case plan required her to address the substance abuse, mental health, domestic violence and parenting issues that she faced and to maintain safe and appropriate housing and sufficient income. After a permanency planning hearing, Judge Kimberly Y. Best–Staton entered an order on 3 November 2009 changing the permanent plan for the children from reunification with Respondent–Mother to termination of parental rights and adoption. At a permanency planning review hearing held on 15 April 2010, Judge Best–Staton found that Respondent–Mother had tested positive for marijuana on 26 March 2010 and that the children could not return home during the next six months because Respondent–Mother had failed to make substantial progress towards completion of her case plan. As a result, Judge Best–Staton directed DSS to suspend any efforts to reunify Fay and Ted with Respondent–Mother and to file a petition seeking the termination of Respondent–Mother's parental rights.
On 14 January 2010, DSS filed petitions seeking the termination of Respondent–Mother's parental rights in which DSS alleged that Respondent–Mother's parental rights were subject to termination pursuant to N.C. Gen.Stat. §§ 7B–1111(a)(1) (neglect), (2) (failure to make reasonable progress), (3) (failure to help cover the cost of care), (6) (incapability), and (9) (after having had her parental rights in other children terminated, lacking the ability or will to establish a safe home). On 2 February 2011, Judge Best–Staton entered an order denying the DSS termination petition after concluding that DSS had failed to establish by clear, cogent, and convincing evidence that Respondent–Mother's parental rights in the children were subject to termination.
On 29 June 2011, DSS filed new petitions seeking the termination of Respondent–Mother's parental rights in Fay and Ted, again alleging that her parental rights were subject to termination pursuant to N.C. Gen.Stat. §§ 7B–1111(a)(1), (2), (3), (6) and (9). On 25 May 2012, the trial court entered an order concluding that Respondent–Mother's parental rights in Fay and Ted were subject to termination pursuant to N.C. Gen.Stat. §§ 7B–1111(a)(1), (2), (3) and (9) and that the termination of her parental rights would be in the children's best interests. Respondent–Mother noted an appeal to this Court from the orders terminating her parental rights in Fay and Ted.
The trial court's termination order was entered on 25 May 2012 and served on Respondent–Mother by mail on 29 May 2012. According to N.C.R.App. P. Rule 3.1(a), an appeal from a termination order shall be taken “in the time and manner set out in Chapter 7B of the General Statutes of North Carolina.” N.C. Gen.Stat. § 7B–1001(b), in turn, provides that notice of appeal “shall be made within 30 days after entry and service of the order[.]” Since Respondent–Mother was served by mail on 29 May 2012, a timely notice of appeal would have had to have been filed no later than 28 June 2012. Because she filed her notice of appeal on 27 June 2012, Respondent–Mother noted her appeal from the trial court's order in a timely fashion. Even so, concerned that her notice of appeal might have been untimely, Respondent–Mother filed a petition with this Court seeking the issuance of a writ of certiorari on 1 October 2012. Having determined that Respondent–Mother did, in fact, note her appeal from the trial court's termination order in a timely manner, we conclude that Respondent–Mother's certiorari petition should be dismissed as moot.
II. Legal Analysis
A. Standard of Review
“The finding of any one of the [statutory] grounds [for termination of parental rights set out in N.C. Gen.Stat. § 7B–1111(a) ] is sufficient to order termination.” Owenby v. Young, 357 N.C. 142, 145, 579 S.E.2d 264, 267 (2003). “Termination of parental rights is a two-step process. In the first phase of the termination hearing, the petitioner must show by clear, cogent and convincing evidence that a statutory ground to terminate exists.” In re S.N., X.Z., 194 N.C.App. 142, 145–46, 669 S.E.2d 55, 58 (2008), citing In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001), and In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997)), aff'd363 N.C. 368, 677 S.E.2d 455 (2009). “Once the trial court has found a ground for termination, the court then considers the best interests of the child in making its decision on whether to terminate parental rights. We review this decision on an abuse of discretion standard, and will reverse a court's decision only where it is ‘manifestly unsupported by reason.’ “ S.N., 194 N.C. App at 146, 669 S.E.2d at 59 (quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E .2d 58, 63 (1980) (other citation omitted).
“ ‘The standard of review in termination of parental rights cases 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, 221–22, 591 S.E.2d 1, 6 (2004) (quoting In re Clark, 72 N.C.App. 118, 124, 323 S.E.2d 754, 758 (1984)). “ ‘[T]he trial court's conclusions of law are reviewable de novo.’ “ In re K.D.L., 176 N.C.App. 261, 263, 627 S.E.2d 221, 222 (2006) (quoting In re Pope, 144 N.C.App. 32, 40, 547 S.E.2d 153, 158,aff'd,354 N.C. 359, 554 S.E.2d 644 (2001)). (Tyson, J., dissenting).
B. Collateral Estoppel and Res Judicata
As an initial matter, Respondent–Mother argues that “the [ ] court's holdings in the first termination hearing, in which the petition was denied, operate as the law of the case with respect to matters determined in that action[,]” so that the trial court erred by relying on information regarding events that were addressed in the initial termination order in concluding that her parental rights in Fay and Ted were subject to termination. More specifically, Respondent–Mother notes that, in the order denying the first termination petition, Judge Best–Staton concluded that Respondent–Mother had made reasonable progress toward addressing the issues that had led to removal of the children from her home; that she lacked the financial resources to cover a portion of the cost of the children's care; that Fay and Ted were not dependent; and that Respondent–Mother was not incapable of or unwilling to provide a safe home for the children. As a result of the fact that Judge Best–Station made these determinations, Respondent–Mother argues that the determinations that Judge Best–Staton made in the earlier termination order constitute the law of the case and that the “relevant time period for the petition” was limited to “matters after the order denying the first termination petition[.]” Thus, Respondent–Mother essentially argues that res judicata and collateral estoppel principles limited the trial court to a consideration of evidence relating to events occurring after the denial of the first petition during its consideration of the issues raised by the second termination petition.
However, respondent raises the defenses of collateral estoppel and res judicata for the first time on appeal, and thus failed to properly preserve the issue. Rule 8(c) [of the Rules of Civil Procedure] provides in pertinent part that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively ... estoppel, ... res judicata, ... and any other matter constituting an avoidance or affirmative defense.” [N.C. Gen.Stat. § 1A–1,] Rule 8(c). “Failure to plead an affirmative defense ordinarily results in waiver of the defense.... [Respondent] neither pled nor tried the case on this theory[.] ... Accordingly, she cannot now present it on appeal.”
In re D.R.S., W.J.S., 181 N.C.App. 136, 140, 638 S.E.2d 626, 628 (2007) (quoting Ward v. Beaton, 141 N.C.App. 44, 49, 539 S.E.2d 30, 34 (2000), cert. denied, 353 N.C. 398, 547 S.E.2d 43 (2001) (internal citation omitted)). Thus, given the fact that Respondent–Mother failed to advance her res judicata and collateral estoppel argument before the trial court, we will not consider it in the course of addressing the validity of her challenges to the trial court's termination order.
C. Grounds for Termination
Secondly, Respondent–Mother contends that the trial court erred by determining that her parental rights in Fay and Ted were subject to termination. In its order, the trial court found that Respondent–Mother's parental rights were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(2), which provides, in pertinent part, that a trial court “may terminate the parental rights upon a finding [that] ... [the] parent has willfully left the juvenile in foster care or placement outside the home 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 juvenile .” Although Respondent–Mother claims that she had “addressed the issues that led to these children coming into [DSS's] care” and that the record “does not support the conclusion that she failed to make progress[,]” we do not find her argument persuasive.
In order to support a decision to terminate a parent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2), the trial court “must determine by clear, cogent and convincing evidence that a child has been willfully left by the parent in foster care or placement outside the home for over twelve months, and, further, that as of the time of the hearing, as demonstrated by clear, cogent and convincing evidence, 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. & O.B., 171 N.C.App. 457, 464–65, 615 S.E.2d 391, 396 (internal citations omitted), disc. review denied,360 N.C. 64, 623 S.E.2d 587 (2005). According to the record developed before the trial court, Fay and Ted were in DSS custody from 18 August 2008 until the hearing on the second termination petition, which began on 26 January 2012. Respondent–Mother's case plan required her to address a number of subjects, including substance abuse difficulties, parenting skills, mental health issues, and domestic violence concerns. In its termination order, the trial court found as fact, in part, that:
5. The Court understands why its predecessor gave [Respondent–Mother] another opportunity to work toward reunification. [Respondent–Mother] is still not in a position to provide permanence for the juveniles.
....
8. [DSS] became involved with this family in 2006, shortly after [Fay and Ted] were born[, due to Respondent–Mother's] ... substance abuse, lack of mental health treatment, lack of parenting skills, inability to provide for the juvenile[s'] basic needs, and inability to appropriately care for the juveniles....
9. The juveniles were placed in [DSS] custody ... on 18 August 2008 as [Respondent–Mother] was failing to address the issues outlined by [DSS, and] ... have remained in [DSS's] custody since that time....
....
13. The Court has continued concerns that [Respondent–Mother] is not able to fully understand the principles provided in the [substance abuse] treatment programs, as she tested positive for marijuana in November 2010 and December 2010. [Respondent–Mother] acknowledges that she continues to associate with those who use controlled substances....
14. ... [Respondent–Mother] complies with the requirements for psychotropic medications. Yet, [Respondent–Mother] has not shown insight into how her mental health issues impact her parenting abilities and the juvenile[s'] needs, and has not fully engaged in any therapy program[.]
15. There is a history of domestic violence between [Respondent–Mother] and Mr. Stewart Dobie....
16. [Respondent–Mother] completed ... [a] domestic violence treatment program ... [but] has not implemented skills learned from the service program. [Respondent-mother] has maintained a relationship with Stewart Dobie, the alleged perpetrator of acts of domestic violence....
....
18. ... [T]he permanency planning social worker[ ] has observed [Respondent–Mother] to have black eyes and bruises on at least two occasions since January 2011. [Respondent–Mother] did not provide logical or consistent reasons for the injuries.
....
20. [DSS] received referrals alleging ... inappropriate sexual contact with [Fay] by an adult male in February 2011. The adult male was identified by [Fay] as “uncle-daddy”, a name the juveniles commonly used for Stewart Dobie.
....
22. [DSS] substantiated [Child Protective Services'] investigation in February 2011 for neglect and failure to provide appropriate supervision while the children were in the care of [Respondent–Mother] for unsupervised weekend visitation in late 2010 and in the beginning of 2011.
....
26. [Respondent–Mother] has ... shown a[n] ... inability to stay away from Mr. Dobie, who has displayed problematic behavior and created concerns[ ] for the safety of the juveniles and [Respondent–Mother].
....
28. In order to be reunified with the juveniles, [Respondent–Mother] had to attend, participate, successfully complete, and demonstrate the skills learned from a parenting education program. [Respondent–Mother] participated in and completed this recommended service[,] ... [but she] still has challenges managing the behavior of the children even in a controlled environment....
29. The Parenting Capacity Evaluation of September 2009, social worker and social worker assistant observations still note continued concerns about [Respondent–Mother's] responses to children when she is providing supervision even while in a controlled environment....
30. [Respondent–Mother] maintained contact with [DSS] and has participated in a number of services outlined in her family service[s] agreement. However, [Respondent–Mother] has failed to incorporate the skills necessary to provide for the safety and permanent well-being of the juveniles in the nearly four years the juveniles have been in [DSS] custody.
....
34. [Respondent–Mother] was also required to submit to and comply with the recommendations from a Parenting Capacity Evaluation.... The evaluator expressed concern regarding [Respondent–Mother's] inability to use the skills learned in the various service programs. She was not able to demonstrate any understanding of the juveniles' needs and/or understanding of how these issues affect the juveniles. Therapy was recommended by the parenting capacity evaluator.
35. The Court has provided [Respondent–Mother] with continued opportunities to engage in therapy and to take steps to correct the issues which led to the juveniles' removal and their remaining in care for nearly four years. Although the mother has made some efforts, she has not made reasonable progress in correcting the issues which caused the juveniles to come into care and remain in care.
Respondent–Mother has not challenged the adequacy of the evidentiary support for these findings of fact, so they are binding for purposes of appellate review. See Koufman v. Koufman, 330 N .C. 93, 97, 408 S.E.2d 729, 731 (1991) (holding that unchallenged findings of fact are deemed to be supported by competent evidence and have preclusive effect on appeal). As the trial court acknowledged, Respondent–Mother has made some efforts to complete the requirements of her case plan. Even so, the trial court found that substantial issues continued to exist with respect to Respondent–Mother's substance abuse problems and parenting deficiencies. See In re Nolen, 117 N.C.App. 693, 700, 453 S.E.2d 220, 224–25 (1995) (stating that “[e]xtremely limited progress is not reasonable progress.”). Therefore, we hold that the trial court's findings support its conclusion that Respondent–Mother's parental rights were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(2).
Although Respondent–Mother has also argued that the trial court erred by concluding that her parental rights in Fay and Ted were subject to termination pursuant to other provisions of N.C. Gen.Stat. § 7B–1111(a), we need not address the validity of her arguments to that effect in light of our determination that her parental rights in Fay and Ted were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(2). In re Taylor, 97 N.C.App. 57, 64, 387 S.E.2d 230, 233–34 (1990).
III. Conclusion
Thus, for the reasons set forth above, we hold that the trial court did not err by finding that Respondent–Mother's parental rights in Fay and Ted were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(2). As a result, given that the trial court correctly found that Respondent–Mother's parental rights in Fay and Ted were subject to termination and that Respondent–Mother has not challenged the trial court's determination that the termination of her parental rights in Fay and Ted would be in the children's best interests, the trial court's order should be, and hereby is, affirmed.
AFFIRMED.
Report per Rule 30(e).