Opinion
NO. COA12-788
01-15-2013
IN THE MATTER OF: H.A.B., A.L.C., S.D.C., D.L.C., and H.G.C.
Stephen M. Schoeberle for petitioner-appellee Burke County Department of Social Services. J. Thomas Diepenbrock for respondent-appellant father. Robert C. Kerner, Jr., for guardian ad litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Burke County
No. 08 J 22-25, 11 J 101
Appeal by respondent-father from orders entered 30 March 2012 by Judge J. Gary Dellinger in Burke County District Court. Heard in the Court of Appeals 3 January 2013.
Stephen M. Schoeberle for petitioner-appellee Burke County Department of Social Services.
J. Thomas Diepenbrock for respondent-appellant father.
Robert C. Kerner, Jr., for guardian ad litem.
ERVIN, Judge.
Respondent-Father D.C. appeals from an order entered by the trial court terminating his parental rights in H.A.B., A.L.C., S.D.C., and D.L.C. in File Nos. 08 J 22-25 and from an order entered by the trial court terminating his parental rights in H.G.C. in File No. 11 J 101. On appeal, Respondent-Father contends that the trial court failed to make sufficient findings of fact in an order ceasing reunification efforts that had been previously entered in File Nos. 08 J 22-25 and that the trial court erred by concluding that grounds existed to justify the termination of his parental rights in File No. 11 J 101. After careful consideration of Respondent-Father's challenges to the trial court's orders in light of the record and the applicable law, we conclude that the trial court's orders should be affirmed.
H.A.B. will be referred to as "Helen," A.L.C. will be referred to as "Ashley," S.D.C. will be referred to as "Sally," and D.L.C. will be referred to as "David" throughout the remainder of this opinion, pseudonyms used for ease of reading and to protect the juveniles' privacy.
H.G.C. will be referred to throughout the remainder of this opinion as "Harrison," a pseudonym used for ease of reading and to protect the juvenile's privacy.
I. Factual Background
The underlying facts of this case as they relate to Helen, Ashley, Sally, and David are set out in detail in an opinion filed by this Court on 3 August 2010, in which we reversed a 12 November 2009 order terminating Respondent-Father's parental rights in Ashley, Sally, and David. In re H.A.B., 206 N.C. App. 330, 698 S.E.2d 555 (2010) (unpublished). After the issuance of this opinion, Helen, Ashley, Sally, and David continued to be placed in a prospective adoptive home. On 14 October 2010, the trial court entered an order changing the permanent plan for the children from a plan of adoption to a concurrent plan of adoption and reunification and ordering Respondent-Father to enter into a case plan that provided for substance abuse, domestic violence, and psychological evaluations; participation in any recommended treatment; and submission to drug testing. In subsequent review orders, Respondent-Father's failure to complete the required evaluations and submit to the required drug screens were adequately documented.
Harrison was born on 8 February 2010. On 26 April 2011, the Burke County Department of Social Services filed a petition in File No. 11 J 101 alleging that Harrison was a neglected juvenile. According to the allegations of the DSS petition, Harrison had been present during recent incidents of domestic violence involving Respondent-Father and Harrison's mother. As a result of these incidents, Harrison's mother agreed to a plan of protection that prohibited Respondent-Father from having contact with Harrison. After Respondent-Father violated the plan on 25 April 2011, Harrison was placed in non-secure custody.
On 26 May 2011, the trial court entered an order changing the permanent plan for Helen, Ashley, Sally, and David to adoption. Although the trial court found that Respondent-Father had completed a psychological evaluation, it determined in reaching this decision that he had failed to obtain a new substance abuse evaluation or domestic violence counseling, as had been recommended in his case plan. In addition, the trial court determined that Harrison had been exposed to several recent incidents of domestic violence. After the entry of this permanency planning order, Respondent-Father filed a notice preserving his right to seek appellate review of that decision.
Although the trial court made reference to the cessation of efforts to reunify Ashley, Sally, and David with Respondent-Father at the conclusion of a hearing held on 28 April 2011, the subject of the necessity for DSS to continue to attempt to reunify the children with Respondent-Father was not addressed in the written order memorializing the decisions reached as a result of the 28 April 2011 hearing, which was entered on 26 May 2011.
DSS filed a motion to terminate Respondent-Father's parental rights in Ashley, Sally, and David on 26 May 2011. In its motion, DSS alleged that Respondent-Father's parental rights were subject to termination based on neglect and willfully leaving the children in foster care without making reasonable progress in correcting the conditions which led to their removal from the home.
The trial court determined that Harrison was a neglected juvenile by means of an order entered on 18 August 2011. At the dispositional phase of that proceeding, the trial court placed Harrison in DSS custody and ordered DSS to cease efforts aimed at reunifying Harrison with his parents. The permanent plan for Harrison was determined to be adoption. On 10 November 2011, DSS filed a motion seeking the termination of Respondent-Father's parental rights in Harrison based on neglect.
A termination hearing was held on 2 February and 1 March 2012. On 30 March 2012, the trial court entered orders in both cases terminating Respondent-Father's parental rights in Ashley, Sally, David, and Harrison. The trial court found that all the grounds for termination alleged by DSS existed and concluded that termination of Respondent-Father's parental rights would be in the children's best interests. Respondent-Father noted an appeal to this Court from the trial court's orders.
The proceedings described in the text also resulted in the termination of the parental rights of the children's mother in Helen, Ashley, Sally, David, and Harrison. No appeal was taken from this aspect of the trial court's termination orders. As a result of the fact that he had voluntarily relinquished his parental rights, Helen's father was not involved in the proceedings before the trial court at issue here.
II. Factual Background
A. Permanency Planning Order
In his first challenge to the trial court's orders, Respondent-Father argues that the trial court failed to make sufficient factual findings in the permanency planning order that it entered in File Nos. 08 J 22-25 on 26 May 2011. We disagree.
In any order placing a juvenile in DSS custody, the trial court may order DSS to cease making reasonable efforts to reunify a child with his or her parents upon finding that:
(1) Such efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time;N.C. Gen. Stat. § 7B-507(b). Although the trial court did not, as Respondent-Father contends, make any of the findings specified in N.C. Gen. Stat. § 7B-507(b) in the 26 May 2011 order, its failure to do so provides no basis for overturning that order because it did not authorize the cessation of reunification efforts. Instead, an order entered by the trial court on 17 November 2008 had specifically stated that "[a]ll efforts aimed at reunifying the juveniles with their mother or [Respondent-Father] shall cease" based on a determination that "any further such efforts would be futile and not in the juveniles' best interests[.]" Although extensive additional proceedings occurred in the trial court in the aftermath of our earlier decision in this case, the trial court never entered an order requiring DSS to resume reunification efforts and DSS never made any further effort to reunify Respondent-Father with the children. In fact, Respondent-Father had not seen Ashley, Sally, or David since 2009. As a result, given that the trial court's 26 May 2011 order did not authorize a cessation of reunification efforts between Respondent-Father and Ashley, Sally, and David, the trial court's failure to make any of the findings required to be contained in such orders by N.C. Gen. Stat. § 7B-507(b) provides no basis for overturning either that order or its subsequent order terminating Respondent-Father's parental rights in those three children.
(2) A court of competent jurisdiction has determined that the parent has subjected the child to aggravated circumstances as defined in [N.C. Gen. Stat. §] 7B-101;
(3) A court of competent jurisdiction has terminated involuntarily the parental rights of the parent to another child of the parent; or
(4) A court of competent jurisdiction has determined that: the parent has committed murder or voluntary manslaughter of another child of the parent; has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child or another child of the parent; or has committed a felony assault resulting in serious bodily injury to the child or another child of the parent.
B. Grounds for Termination
Secondly, Respondent-Father contends that the trial court erroneously found that his parental rights in Harrison were subject to termination for neglect. Once again, we disagree.
At the adjudicatory stage of a termination of parental rights hearing, the petitioner has the burden of proving by clear, cogent, and convincing evidence that at least one ground for termination exists. N.C. Gen. Stat. § 7B-1109(f); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). On appeal, our review of a trial court's termination order is limited to determining whether the record contains sufficient evidence to support the trial court's findings of fact and whether the trial court's findings of fact support its conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). A properly-supported finding of fact is "conclusive on appeal even though the evidence might support a finding to the contrary." In re Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985) (citation omitted).
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 lives in an environment injurious to the juvenile's welfare[.]" N.C. Gen. Stat. § 7B-101(15); see also N.C. Gen. Stat. § 7B-1111(a)(1). "Neglect 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 has been separated from the child for an extended period of time, the petitioner must show that the parent has neglected the child in the past and that the parent is likely to neglect the child in the future." Id. (citation omitted).
In this case, the trial court found that Harrison had been in DSS custody since April of 2011 and that he had previously been adjudicated to be a neglected juvenile. As a result, the determinative question for purposes of Respondent-Father's challenge to the trial court's order is whether the evidence and findings of fact sufficiently support the trial court's conclusion that a repetition of neglect was likely if Harrison were to be placed in Respondent-Father's care. We believe that this question should be answered in the affirmative.
The findings of fact contained in the termination order amply justify the trial court's determination that repetition of neglect was likely in the event that Harrison was returned to Respondent-Father's care. Among other things, the trial court found that Respondent-Father had failed to obtain substance abuse and domestic violence treatment in accordance with previous orders of the court; that Respondent-Father had failed to establish a stable residence; that Respondent-Father was involved in a romantic relationship with a woman (other than Harrison's mother) who was facing drug charges; that Respondent- Father had never paid any support for Harrison; and that Respondent-Father had not had any contact with Harrison since 25 April 2011. Contrary to Respondent-Father's arguments, these findings of fact have ample evidentiary support, including information contained in Respondent-Father's own testimony. Although some of Respondent-Father's testimony conflicts with certain portions of the evidence presented by DSS, the trial court is responsible for "pass[ing] upon the credibility of the witnesses and [determining] the weight to be given their testimony and the reasonable inferences to be drawn therefrom." Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994) (internal quotes and citation omitted). In addition, the trial court's findings support its determination that Harrison was a neglected juvenile. See In re D.B., C.B., 186 N.C. App. 556, 562, 652 S.E.2d 56, 60 (2007) (holding that evidence of recent domestic violence between the child's parents supported the trial court's determination that the parent's parental rights were subject to termination based on neglect), aff'd, 362 N.C. 345, 661 S.E.2d 734 (2008). As a result, we hold that the trial court correctly determined that grounds for terminating Respondent-Father's parental rights in Harrison existed.
For example, Respondent-Father testified at the termination hearing that he had failed to obtain a substance abuse evaluation and domestic abuse training after 6 January 2011. The fact that Respondent-Father may not have been ordered to obtain such treatment in the case specifically involving Harrison should not obscure the fact that he had been ordered to obtain such services in the case involving the other children and that his failure to do so had a direct bearing upon the likelihood that the neglect which Harrison had experienced would be repeated. Similarly, the fact that Respondent-Father had obtained some services in the past does not undercut the trial court's determination that he had failed to take appropriate action after our prior decision remanding the cases involving the other children for further proceeding. In addition, the record demonstrates that Respondent-Father had only lived at his current residence for about two months as of the date of the termination hearing, a fact which amply supports the trial court's determination that Respondent-Father had not obtained stable housing. Finally, Respondent-Father's arguments in reliance upon the fact that he failed to maintain contact with the children because he thought the case was over and the fact that he had ceased having contact with Harrison's mother amount to contentions relating to the weight, rather than the sufficiency, of the evidence offered in support of the request for termination of his parental rights.
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In seeking to persuade us to reach a different result, Respondent-Father argues, in reliance upon In re Shermer, 156 N.C. App. 281, 288, 576 S.E.2d 403, 408 (2003), that DSS did not give him sufficient time to comply with his case plan before seeking the termination of his parental rights. We do not find the facts at issue in this case in any way analogous to those at issue in Shermer. Unlike the situation in Shermer, in which the parent's parental rights were terminated after only two months of non-compliance with his case plan, Respondent-Father consistently demonstrated over a period of several years his unwillingness to comply with the case plans developed with DSS and the orders entered by the trial court in the cases involving Helen, Ashley, Sally, and David. By the time of the termination hearing, Harrison had been adjudicated to be a neglected juvenile approximately six months earlier and had been in DSS custody for almost one year. As a result, we hold that Respondent-Father was afforded sufficient time to comply with the relevant orders and plans and that the trial court did not err by concluding that his parental rights in Harrison were subject to termination for neglect.
III. Conclusion
Thus, for the reasons set forth above, we hold that Respondent-Father's challenges to the trial court's 26 May 2011 permanency planning order involving Helen, Ashley, Sally, and David and the trial court's termination order involving Harrison lack merit. As a result, the trial court's orders should be, and hereby are, affirmed.
AFFIRMED.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).