Opinion
No. COA11–1408.
2012-05-1
Holland & O'Connor, P.L.L.C., by Jennifer S. O'Connor, for Petitioner Johnston County Department of Social Services. Joyce L. Terres for Respondent-mother.
Appeal by Respondent-parents from orders entered 29 August 2011 by Judge Addie Harris Rawls in Johnston County District Court. Heard in the Court of Appeals 3 April 2012. Holland & O'Connor, P.L.L.C., by Jennifer S. O'Connor, for Petitioner Johnston County Department of Social Services. Joyce L. Terres for Respondent-mother.
Rebekah W. Davis for Respondent-father.
Pamela Newell, GAL Appellate Counsel, North Carolina Administrative Office of the Courts, for Guardian ad Litem.
STEPHENS, Judge.
Respondent-parents appeal from orders terminating their parental rights to H.G.K., R.L.K., and D.J.K. After careful review, we affirm.
Initials are used to protect the juveniles' identities.
In September 2008, Petitioner Johnston County Department of Social Services (“DSS”) filed a petition alleging that H.G.K., R.L .K., and D.J.K. were neglected and dependent juveniles. DSS first became involved with the juveniles in 2007 “due to the unclean condition of the home including, but not limited to unwashed clothing, dishes and food left on the counter, trash piled up in the home and roach infestation.” DSS also arranged services for the juveniles, who were born with medical issues and developmental delays.
DSS closed the case in April 2008 after Respondent-parents demonstrated an ability to maintain a sanitary home. However, about two months later, DSS found that Respondent-parents' home was again in an unsanitary condition. The juveniles were removed from Respondent-parents' home and placed in foster care. On 10 December 2008, the juveniles were adjudicated neglected and dependent. At disposition, the court ordered DSS to continue reunification efforts, but suspended visitation “due to [the] detrimental effect it is having on the juveniles.” DSS subsequently recommended psychological evaluations and parenting and substance abuse classes for Respondent-parents, as well as maintenance of a clean, safe home.
The court later allowed Respondent-parents visitation, but the juveniles showed regressive behaviors, and on 24 March 2010, the court ceased visitation again. Once visitation ceased, the juveniles “made great progress in improving their developmental needs.” Accordingly, on 15 September 2010, the court changed the permanent plan for the juveniles to adoption.
On 10 December 2010, DSS filed petitions to terminate Respondent-parents' parental rights. Following hearings on 25, 26 and 28 July 2011, the trial court concluded that grounds existed to terminate Respondent-parents' parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) (neglect) and (2) (failure to make progress), and determined that it was in the juveniles' best interest that Respondent-parents' parental rights be terminated. Respondent-parents appeal.
Discussion
Respondent-parents make three arguments: (1) that certain findings of fact are not supported by clear, cogent, and convincing evidence; and that the court erred in concluding (2) that the juveniles were neglected and (3) that Respondent-parents had left the juveniles in foster care for more than twelve months without making reasonable progress in correcting the conditions which led to the juveniles' removal from Respondent-parents' home. Because we conclude that the court's conclusion that the juveniles were neglected is supported by its findings of fact, which in turn are supported by competent evidence, we affirm the termination orders.
Standard of Review
There are two stages to a termination of parental rights proceeding: adjudication, governed by N.C. Gen.Stat. § 7B–1109, and disposition, governed by N.C. Gen.Stat. § 7B–1110. During the adjudication stage, petitioner has the burden of proof by clear, cogent, and convincing evidence that one or more of the statutory grounds set forth in section 7B–1111 exists. A finding of any one of the grounds enumerated [in section 7B–1111], if supported by competent evidence, is sufficient to support a termination.
In re D.J.D., 171 N.C.App. 230, 238, 615 S.E.2d 26, 32 (2005) (citations and quotation marks omitted). It is the role of the trial court to “weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom.” In re Whisnant, 71 N.C.App. 439, 441, 322 S.E.2d 434, 435 (1984). “The standard of appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law.” In re D.J.D., 171 N.C.App. at 238, 615 S .E.2d at 32.
Conclusion of Neglect
Respondent-parents argue that the trial court erred in concluding that the juveniles were neglected. We disagree.
One ground for termination of parental rights is that “[t]he parent has ... neglected the juvenile .... within the meaning of G.S. 7B–101.” N.C. Gen.Stat. § 7B–1111(a)(1) (2011). Section 7B–101 defines a neglected juvenile as one
who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; ... 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[.]
N.C. Gen.Stat. § 7B–101(15) (2011).
“A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding.” In re Young, 346 N.C. 244, 248, 485 S .E.2d 612, 615 (1997). Where, as here, a juvenile was removed from the parents' custody prior to the termination hearing,
evidence of neglect by a parent prior to losing custody of a child—including an adjudication of such neglect—is admissible in subsequent proceedings to terminate parental rights. The trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect. The 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).
Here, the trial court made findings of fact regarding the 2008 adjudication and also considered and made findings based on “evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect[.]” Id. For example, the court made specific findings of fact about Respondent-parents' cooperation with portions of their case plans, including completion of a parenting class, and noted some temporary improvement in the sanitary condition of their new home. However, the trial court also found that Respondent-parents, inter alia, failed to follow through with other recommended classes and programs; were unable to manage the juveniles during visitation, leading to observable frustration on the part of Respondent-parents and regressive behavior on the part of the juveniles; and were ultimately unable to maintain a clean home free of hazardous conditions. As a result, the court found:
The trial court entered a separate order terminating parental rights for each of the three juveniles. However, because the findings and conclusions in the three orders are virtually identical with the exception of name, birthdate, and other child-specific information, we discuss and address challenges to the conclusions of law and findings of fact in all three orders together.
45. The Court, in contemplation of any change of conditions previously noted herein, finds that due to the parents [sic] ongoing inability to recognize and understand the extensive developmental delays of their children, as well as their inability to demonstrate basic parenting techniques during visitations when said visits occurred, the children would be at a substantial risk of physical and/or emotional harm if returned to the care of the parents.
47. [T]he parents have been unable to demonstrate an ability to maintain a home free from protective issues.... The parents have been unable to demonstrate the ability to consistently address not only their children's issues, but their own parenting and have further failed to demonstrate the commitment and ability to do so, particularly on a long term basis.
48. The court finds as a fact that the parents have not successfully addressed any of the issues, which led to the [juveniles'] removal, which would prevent future neglect if the child[ren] were returned to their care. The court has considered evidence of changed conditions and determines that the parents have completed at least three parenting programs and instructions and have had some improvement, at times, in the condition of their home. The court finds that the changed conditions, taken in light of the parents' history of neglect, does not deflect the high probability of future neglect if the juveniles were returned to either parents' care....
Thus, the court properly considered both the prior adjudication and evidence of changed conditions, and its conclusion that future neglect was likely is supported by its findings of fact. This argument is overruled.
Findings of Fact
Respondent-parents also argue that portions of numerous of the trial court's findings of fact are not supported by competent evidence in the record. Because a single statutory ground is sufficient to support termination, we address only those findings necessary to support the court's conclusion that the juveniles were likely to be neglected if returned to Respondent-parents' custody, to wit, those concerning the condition of Respondent-parents' home and their ability to effectively manage the juveniles. In so doing, we conclude that each of these necessary findings is supported by competent evidence.
Respondent-father challenges findings of fact which describe the conditions and circumstances which resulted in the 2008 adjudication of the juveniles as neglected. While Respondent-father concedes that the juveniles were neglected, he contends that the court exaggerated the severity of the neglect. However, as Respondent-father notes, these findings are based on DSS reports, which constitute competent evidence. See, e.g., In re J.C.S., 164 N.C.App. 96, 107, 595 S.E.2d 155, 161 (2004) (concluding that “the trial court's findings of fact were supported by competent evidence [including, inter alia,] the detailed DSS report”).
Respondent-mother contends that no competent evidence supports the findings of fact which suggest Respondent-parents had on-going problems in keeping their home clean and sufficiently uncluttered to provide a safe environment for the juveniles or that the juveniles' developmental delays required them to have “a clean, stable and sanitary environment and receive consistent care and consistent services.” The court found:
25.... The parents had difficulty demonstrating an ability to maintain a clean and sanitary home, even in the new residence....
...
34.... Over a period [of] time[,] however, the home became more cluttered. The Respondents' home required treatment by exterminators to rid the new home of roaches.... The Court finds that the parents continue, even as of this hearing, to demonstrate the same patterns of inability to consistently provide a clean and safe home environment or even recognize the need to do so.
...
36.... Respondents continue to demonstrate an inability to maintain an uncluttered, clean sanitary home. The improvement to the condition of the home, at times, was made during the time the children were not in the home, and that the Respondents have been unable to provide conditions that would be conducive for the children with developmental delays and other issues that these children have demonstrated.
...
40.... The parents have repeatedly demonstrated since the children were removed their inability to follow through with the tasks they had stated they would, including but not limited to maintaining a clean, sanitary home....
41. The Respondent mother continues ... to negate her responsibilities ... and the ability to keep the home in an uncluttered and sanitary condition, citing that “my house has bad days.” ...
42. The Court finds, from the testimony of professionals, that the needs of the children are so great, that the children need to be in a clean, stable and sanitary environment and receive consistent care and consistent services.... Respondents failed to prioritize what care is necessary for the care of the children, suffering from developmental delays and failed to identify those delays and causes thereof....
The record reveals that DSS social workers testified that, although they initially observed improved conditions, eventually the new home became cluttered and required treatment for roach infestation. DSS social worker Tracy Leyda testified that she had observed roaches in the home as recently as February 2011, stating, “It's not a significant improvement [of the conditions at the previous home] in terms of clutter and junk and things being around.”
Leyda further testified regarding the importance of maintaining a sanitary home, free of clutter, for the juveniles:
These children are still at the age where they need to be supervised. They still occasionally want to put things in their mouth, or you know, try to grab a bumblebee in the yard. They still need that supervision, and they need a home that's free from hazards that they can fall on, that they can hurt themselves on, that they can put in their mouth....
Leyda also opined that “if DSS is not constantly in their home, telling them what to do, and instructing them what to do, [Respondent-parents] are not able to maintain it. They are just not. They can do it for a little while, but they are not able to maintain it.” Thus, competent evidence supports the challenged portions of findings of fact regarding the state of respondent-parents' home.
Respondent-parents also challenge the court's findings of fact regarding their ability to effectively manage and parent the juveniles:
23.... The Respondents were not able to demonstrate an ability to parent or manage the children for the one hour visitation and were observed to be frustrated by the children's tantrums and hyperactivity....
24.... Throughout the observation of the visitations, the children's behaviors became more aggressive and disruptive. The visits were chaotic; that while Respondents made attempts at trying to facilitate those visits, it was difficult for them to maintain the behavior of the children and stopping the children, especially [H.G.K.], from being combative with siblings in effort to gain attention of either one of the Respondents and often had to be redirected.... The parents were not able to control the minor children and the children were more engaged in what appeared to be misbehavior in the oldest child, H.G.K., and continued to argue with each other and become physically aggressive.
...
32.... [T]he parents [continue to] have difficulty managing the children in safe, structured environment in the visitation room at [ ]DSS. It was the opinion of [psychologist] Dr. [D. Robert] Aiello that the Respondents would have difficulty managing the children in an unstructured environment, such as a community park or their own home. The Court finds from the expert opinion of Dr. Aiello, that the children would not be safe with the Respondent parents for even a brief period of time and that while the parents had made themselves available for parenting classes and appeared to be cooperating with services, Respondents still had the inability to meet the needs of minor children with significant delays and control the children in a structured environment and as such, would not be able to parent or control the children in an unstructured environment, even as of this date.... [T]he Respondents, as of this hearing, would not be able to independently and appropriately parent the children....
...
38. Respondents have been unable to demonstrate basic parenting skills or possess basic parenting knowledge....
39.... Respondents ... continue to appear to the Court to not make a connection between what they were taught in the various parenting books and classes and what will actually be needed in reality to meet the needs of these delayed children and further how to appropriate[ly] deal with the needs of the children. The Court finds that this is further exasperated [sic] by the inability to control the minor children or make appropriate decisions during visitations with the minor children at [ ]DSS, and even failure to elicit help of other staff members ... causing the visits to remain chaotic....
Respondent-parents observe that, after December 2008, they only had the opportunity to visit their children in a small room at DSS. Respondent-mother contends that these conditions made it “difficult ... to entertain and manage [the three children] simultaneously.” However, Respondent-mother herself testified that the visits were “a mixed bag” and that Respondent-parents sometimes “did not do well” with the juveniles. Further, the psychologist and social worker who observed the visits for DSS testified that Respondent-parents had a hard time managing the juveniles and were not able to keep them from unsafe behaviors. This competent evidence supports the court's findings of fact.
Respondent-mother also contends the social worker and psychologist focused too much on the negative aspects and that the trial court erred in not giving greater weight to reports of appropriate parenting by Respondent-parents. As noted, supra, in termination of parental rights cases, the trial court must “weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom.” In re Whisnant, 71 N.C.App. at 441, 322 S.E.2d at 435. Accordingly, we do not reweigh the evidence before the trial court or second-guess its findings of facts if, as here, they are supported by competent evidence. Respondent-parents' arguments challenging the findings of fact are overruled.
Conclusion
In sum, we conclude that competent evidence and the court's accordant findings of fact fully support its finding that the juveniles would likely suffer neglect again were they returned to Respondent-parents' care. Thus, the trial court did not err by concluding that this ground existed to terminate Respondent-parents' parental rights. Accordingly, the order terminating Respondent-parents' parental rights is
AFFIRMED. Judges McGEE and HUNTER, JR., ROBERT N., concur.
Report per Rule 30(e).