Opinion
No. COA12–857.
2013-03-5
In the Matter of H.N.H. and K.V.H., Minor Children.
Eggers, Eggers, Eggers, and Eggers, PLLC, by Kimberly M. Eggers, and Harrison & Poore, PA, by Hal Harrison, for the Yancey County Department of Social Services, petitioner-appellee. M. Carridy Bender for guardian ad litem.
Appeal by respondents from orders entered 30 March 2012 by Judge Randy Poole in Yancey County District Court. Heard in the Court of Appeals 30 January 2013. Eggers, Eggers, Eggers, and Eggers, PLLC, by Kimberly M. Eggers, and Harrison & Poore, PA, by Hal Harrison, for the Yancey County Department of Social Services, petitioner-appellee. M. Carridy Bender for guardian ad litem.
Michael E. Casterline for mother, respondent-appellant.
James E. Tanner III for father, respondent-appellant.
BRYANT, Judge.
Where the trial court's findings of fact were supported by clear, cogent and convincing evidence and that evidence supported its conclusion that the minor children were neglected, that respondent-mother's conduct risked a repetition of neglect, and that it was in the best interests of the minor children to terminate respondent-mother's parental rights, we affirm the trial court order as to respondent-mother. Where the trial court's findings of fact fail to support its conclusion that there was a risk of repetition of neglect by respondent-father or that he willfully left them in foster care without showing reasonable progress in correcting the conditions that led to the removal of the minor children, we reverse the trial court's order as to respondent-father.
Respondents appeal from orders terminating their parental rights to two minor children born of their marriage in the years 2000 and 2002. On 28 July 2008, the Yancy County Department of Social Services (hereinafter “DSS”) filed juvenile petitions alleging that Harriet and Kristin were abused, neglected, and dependent juveniles. On 28 August 2008, the minor children were adjudicated as neglected juveniles.
Pseudonyms are used to protect the identity of the minor children.
In April 2011, DSS filed motions to terminate the parental rights of both respondent-mother and respondent-father on the grounds that (1) the parents have neglected the juveniles, (2) the parents have willfully left the juveniles in foster care for a period of 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 juveniles, and (3) respondent-mother is incapable of providing for the proper care and supervision of the juveniles such that they are dependent juveniles. After multiple days of hearings in mid-November and early December 2011, the court entered orders on 30 March 2012 terminating respondents' parental rights to Harriet and Kristen concluding that the juveniles were neglected and that the juveniles had been left in foster care for more than 12 months without reasonable progress being made to address the issues leading to their removal from respondent-parents. Respondents appeal.
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On appeal, respondent-mother raises the following questions: (I) whether the trial court order terminating her parental rights was sufficient; (II) whether the trial court found her failure to make progress willful; (III) whether there were sufficient findings to establish neglect; (IV) and whether there was evidence to support the finding that the juveniles have a “poor and relatively non-existent” bond with respondent-mother.
Respondent-father raises the following questions: whether there were (V) findings showing a risk of repetition of neglect; and (VI) findings showing that respondent-father willfully left the juveniles in foster care for more than twelve months without making reasonable progress in addressing issues that led to their removal.
Standard of Review
We review an order terminating parental rights to determine whether the findings of fact are supported by clear, cogent and convincing evidence and whether the conclusions of law are supported by the findings of fact. In re Shepard, 162 N.C.App. 215, 221, 591 S.E.2d 1, 6 (2004). We conduct de novo review of the court's conclusions of law. In re S.N., 194 N.C.App. 142, 146, 669 S.E .2d 55, 59 (2008).
I
Respondent-mother argues that the court's orders are deficient because the court (1) did not make an independent determination of the facts, (2) improperly denominated conclusions of law as findings of fact, and (3) failed to state the statutory basis for the conclusion that grounds exist to terminate her parental rights. We disagree.
(1) Failure to Make Independent Determination of Facts
The court may not recite solely the allegations of a petition or motion. In re O.W., 164 N.C.App. 699, 702, 596 S.E.2d 851, 853 (2004). The court may not rely solely upon reports and other written documents but must receive oral testimony at the termination hearing. N.C. Gen.Stat. § 1A–1, Rule 43(a) (2011); In re A.M., 192 N.C.App. 538, 542, 665 S.E.2d 534, 536 (2008). In order to satisfy its burden of proof, the petitioner must present more than a court report prepared by a social worker and argument by counsel. In re N.B., 195 N.C.App. 113, 116–17, 670 S.E.2d 923, 926 (2009). The court may consider written reports and make findings based thereon but it may not broadly incorporate reports from outside sources as its findings of fact. In re C.M., 183 N.C.App. 207, 213, 644 S.E.2d 588, 593–94 (2007). “Where there is directly conflicting evidence on key issues, it is especially crucial that the trial court make its own determination as to what pertinent facts are actually established by the evidence, rather than merely reciting what the evidence may tend to show.” In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 366 (2000) (citation omitted).
Respondent-mother acknowledges that social workers who prepared reports did testify at the termination hearing but argues these witnesses read heavily from reports and prior orders in the case.
The fact that witnesses from DSS testified fundamentally distinguishes the case at bar from In re A.M. and In re N.B. DSS called ten witnesses, who did more than just read from reports and orders. The court received evidence from a total of seventeen witnesses during a trial lasting five days.
Respondent-mother contends that even if the court did comply with the requirements of A.M. and N.B., the court failed to comply with Gleisner because it recited or summarized the testimony of witnesses in its findings of fact. However, we have held “[t]here is nothing impermissible about describing testimony, so long as the court ultimately makes its own findings, resolving any material disputes.” In re C.L.C., 171 N.C.App. 438, 446, 615 S.E.2d 704, 708 (2005). Moreover, although disapproving of the practice, our appellate courts have interpreted the recitation of testimony by a tribunal in its findings of fact “to mean that it does find the recited testimony to be a fact.” Peoples v. Cone Mills Corp., 316 N.C. 426, 442, 342 S.E.2d 798, 808 n. 7 (1986). Here, the trial court did make ultimate findings of fact expressly identifying the testimony that it found credible.
Respondent-mother further contends that even if the findings of fact do comply with A.M., N.B., O.W., and Gleisner, several findings of fact (51 through 61) are nearly verbatim recitations of the trial court's permanency planning orders which are based upon a different standard of proof and hence, should be set aside. See In re A.K., 178 N.C.App. 727, 731–732, 637 S.E.2d 227, 229–30 (2006). The permanency planning orders, however, do not form the sole basis for the substance of these findings. The trial court made other findings of fact based upon the testimony of witnesses at the termination hearing which cover the same history and subject matter. These findings show that respondent-mother has not made progress with respect to her case plan, has ongoing mental health issues, has made very few child support payments, has associated with dangerous individuals, and has continued to have substance abuse issues. When ample other evidence and findings support an adjudication, “erroneous findings unnecessary to the determination do not constitute reversible error.” In re T.M., 180 N.C.App. 539, 547, 638 S.E.2d 236, 240 (2006) (citation omitted). Therefore, respondent-mother's contention is overruled.
(2) Conclusions of Law Improperly Denominated as Findings of Fact
The parties all agree that findings of fact 23, 24, and 26 are mischaracterized as findings of fact when they are actually conclusions of law.
The classification of a determination as either a finding of fact or a conclusion of law is admittedly difficult. As a general rule, however, any determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law. Any determination reached through logical reasoning from the evidentiary facts is more properly classified a finding of fact.
In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675 (1997) (citations and quotations omitted). A finding of fact which is essentially a conclusion of law will be treated as a conclusion of law on appeal. In re M.R.D.C., 166 N.C.App. 693, 697, 603 S .E.2d 890, 893 (2004). Mislabeling a finding of fact as a conclusion of law is inconsequential if the remaining findings support it. In re R.A.H., 182 N.C.App. 52, 60, 641 S.E.2d 404, 409 (2007).
We hold that any mislabeling in the trial court's orders is inconsequential. Finding of fact 23 states that a prior order required respondent-mother to undergo substance abuse assessment and to submit to random drug screens and that all subsequent orders “contained these requirements and were binding upon respondent mother.” Respondent-mother does not dispute that she was ordered to undergo random drug screens. She did not object to the admission into evidence of prior orders in this case, all of which ordered her to participate in random drug screens. Finding of fact 24 states that respondent-mother's refusal to submit to at least two random drug screens “[was] wilful [sic] and without excuse or justification.” In finding number 24, the court also found that respondent-mother cursed and threatened a DSS employee who sought to obtain two drug screens from her. This finding is supported by the testimony of DSS employees who sought to obtain the drug screens. Finding of fact 26 states that respondent-mother has been non-compliant with her case plan. The order entered by the trial court is replete with findings of fact demonstrating her noncompliance with the case plan. Respondent-mother's contention is overruled.
(3) Failure to State Legal Basis for Termination of Rights
An order terminating parental rights must adequately identify the statutory ground(s) upon which the court is basing termination of rights in order to permit effective appellate review. In re D.R.B ., 182 N.C.App. 733, 737–38, 643 S.E.2d 77, 80 (2007). Respondent-mother contends the court's conclusions of law do not identify any of the specific grounds for termination of parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a).
Here, the court made the following conclusions of law:
1. The minor children herein were adjudicated as neglected juveniles by the Yancey County District Court in an Adjudication Order from the 28 August 2008 term of Juvenile Court for Yancey County, North Carolina. The Count concludes that this neglect did occur and will likely continue if the minor children are returned to the respondent parents.
2. The Court concludes that there has been no progress made toward reunification and addressing the allegations of neglect in the Petition. The Court concludes that the minor children have been left in foster care placement for more than 12 months without reasonable progress being made to address the issues leading to their removal from respondent parents.
A trial court may terminate parental rights upon a finding that the parent has neglected the juvenile, seeN.C. Gen.Stat. § 7B–1111(a)(1) (2011), or that “[t]he 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 [,]” N.C. Gen.Stat. § 7B–1111(a)(2). Although the court's conclusions of law do not parrot the statutes word for word, we are able to discern the grounds found by the court and to conduct effective appellate review. Accordingly, respondent-mother's argument is overruled.
II
We address respondent-mother's second argument presented on appeal along with respondent-father's contention in argument VI.
III & V
Respondents collectively contend that the court erred by concluding that they neglected the juveniles and that the neglect will likely continue if the children are returned to their parents. We consider their arguments separately.
Parental rights may be terminated pursuant to N.C. Gen.Stat. § 7B–1111(a) if “[t]he parent has ... neglected the juvenile. The juvenile shall be deemed to be ... neglected if the court finds the juvenile to be ... a neglected juvenile within the meaning of G.S. 7B–101.” N.C.G.S. § 7B–1111(a)(1). A parent neglects a child within the meaning of N.C. Gen.Stat. § 7B–101 if the parent fails to provide proper care, supervision, discipline, necessary medical or remedial care, or the juvenile lives in an environment injurious to the juvenile's welfare. N.C. Gen.Stat. § 7B–101(15). “In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.” Id. “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). If the child is removed from the parent before the termination hearing, then “[t]he 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.” In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984) (citation omitted).
(1) Likelihood of Repetition of Neglect by Respondent-mother
Respondent-mother argues the findings of fact fail to show a continuation of the behaviors or circumstances that led to the removal of the children in 2008. Specifically, she notes that she has stabilized her residency situation, has addressed her alcohol abuse issues, and has obtained a divorce from respondent-father, who had been sexually abusing respondent-mother's daughter from a previous relationship.
The findings of fact, however, show that respondent-mother failed to report the sexual abuse of her daughter by respondent-father although she had witnessed it. Despite this knowledge, respondent-mother moved out of the home in July 2008, left the three children in the home with respondent-father, and stated that it was okay for the juveniles at issue to sleep in the same bed with respondent-father. Respondent-mother drank excessively and had a propensity for anger, yelling, and cursing in the presence of her children. The parties often argued loudly in front of the children. Respondent-mother would leave the home for long periods of time without telling anyone of her whereabouts.
After the children were removed from her custody, respondent-mother was also convicted of numerous crimes in 2008 and 2009. These convictions include driving while impaired, multiple counts of resisting a public officer, driving while license revoked, simple assault, two counts of injury to personal property, being intoxicated and disruptive, criminal contempt, and escape from a local jail.
Respondent-mother subsequently entered into a relationship with a man who had a history of alcoholism and criminal activity. Against her therapist's advice, respondent-mother continued to associate with this person, visiting him in jail on three occasions in October 2011 and not telling her therapist that she had visited him. The therapist was concerned for the safety of the juveniles if they were returned to the home of respondent-mother because she lacked a stable home and an appropriate support system. The therapist also believed that respondent-mother needed significant work in managing anger, developing responsible behaviors, and improving her self-esteem.
The foregoing findings expose a history of substance abuse, criminal activity, domestic violence, erratic behavior, and associations with men of questionable character by respondent-mother before and after the children were removed from the home and extending until the time of the termination hearing. We hold these findings support the conclusion that the neglect is likely to be repeated if the juveniles are returned to the home of respondent-mother. Therefore, respondent-mother's argument is overruled.
(2) Likelihood of Repetition of Neglect by Respondent-father
Respondent-father contends there is no evidence or findings to support a conclusion that it is likely he will repeat the neglect of the two children. He submits that the findings of fact do not address the likelihood of repetition of neglect by him. We agree.
The findings of fact pertaining solely to respondent-father reflect that respondent-father pled guilty to criminal charges arising out of his sexual abuse of his then stepdaughter and served a prison sentence of twenty-nine months. During his incarceration he completed 600 hours of sex offender treatment and counseling. He was released on parole in early 2011. As a condition of parole, he is not allowed to live with any minor children for a period of five years. He has registered as a sexual offender in Yancey County. Since his release from prison, he has been regularly employed as a plumber and has been paying $400.00 per month to support the two juveniles at issue. He has not attended any team meetings with DSS because he did not think it would be appropriate for him to be in the presence of respondent-mother or the child he had molested. He has engaged in mail and telephone communications with the two children and has acted appropriately.
Absent from these findings is anything to suggest that he is likely to repeat the prior neglect if his rights were not terminated. There is no finding or evidence of a high risk that he will sexually abuse his children. As the trial court found above, respondent-father has completed 600 hours of counseling and treatment and has registered as a sexual offender. He has regularly paid child support and has maintained an appropriate relationship with his children.
While we acknowledge a child's need for permanence at the earliest possible time, we are also guided by the principle that “[t]he permanent removal of a child from its natural parent requires the highest level of scrutiny and should only occur where there is compelling evidence of potential risk of harm to the child or [his] well being [sic].” In re Nesbitt, 147 N.C.App. 349, 361, 555 S.E.2d 659, 667 (2001). We conclude such evidence is lacking with regard to respondent-father. We therefore reverse the termination of parental rights of respondent-father made on the ground he has neglected the children.
II & VI
We now turn to respondents' contention that the court erred by terminating their parental rights on the grounds they willfully left the children in foster care without making reasonable progress in correcting the conditions that led to the placement of the children in foster care. As we have upheld termination of the mother's parental rights on the ground she has neglected the children and as only one ground is necessary support the termination of parental rights, we need not consider her arguments as to the second ground found by the court. In re P.L.P., 173 N.C.App. 1, 8, 618 S.E.2d 241, 246 (2005). We thus consider only the argument of respondent-father regarding the second ground.
Parental rights may be terminated if a 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.
N.C. Gen.Stat. § 7B–1111(a)(2) (2011). To terminate a parent's rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2), it must be shown by clear and convincing evidence that the parent (1) willfully left the child in placement outside the home for more than twelve months, and (2) as of the time of the termination hearing, has failed to make reasonable progress under the circumstances to correct the conditions that led to the child's removal. In re O.C., 171 N.C.App. 457, 464–65, 615 S.E.2d 391, 396 (2005). The trial court's order must contain adequate findings of fact as to whether the parent acted willfully and whether the parent made reasonable progress under the circumstances. In re C.C., 173 N.C.App. 375, 384, 618 S.E.2d 813, 819 (2005).
Respondent-father contends the court failed to make any findings of fact directed to the issues of willfulness or lack of progress, and that without these findings, the conclusion of law that he willfully left the children in foster care without making reasonable progress in addressing the conditions which led to their removal is unsupported. We agree with respondent-father that the court's findings of fact are inadequate to support a conclusion that he willfully left his children in foster care without making reasonable progress under the circumstances in correcting the conditions that led to their separation from the parents.
“Willfulness is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort.” In re McMillon, 143 N.C.App. 402, 410, 546 S.E.2d 169, 175 (2001) (citation omitted). “Evidence showing a parents' ability, or capacity to acquire the ability, to overcome factors which resulted in their children being placed in foster care must be apparent for willfulness to attach.” In re Matherly, 149 N.C.App. 452, 455, 562 S.E.2d 15, 18 (2002) (citation omitted).
In the case at bar, the court's findings do not demonstrate an unwillingness to make an effort to overcome factors which resulted in the juveniles being placed in foster care: respondent-father separated from respondent-mother, completed 600 hours of sexual abuse counseling and treatment, obtained employment, maintained appropriate contact with his children by letters and telephone, and supported the children by paying $400.00 per month in child support. The trial court further found that respondent-father failed to attend family team meetings with DSS “because he did not feel it would be appropriate to be in the presence of [respondent-mother] and [former step-daughter].”
Because the findings of fact do not support the conclusion of law that respondent-father willfully left the juveniles in foster care, we reverse the termination of respondent-father's parental rights on the second ground found by the court. Because no basis stated for the termination of respondent-father's parental rights is supported by the findings of fact in the trial court's order, the trial court's order as to respondent-father is hereby reversed.
Respondent-mother next contends that the court erred by concluding the bond between her and the juveniles is “poor and relatively non-existent.” She argues the conclusion is not supported by the findings of fact or the evidence.
After determining that a ground exists for terminating parental rights, the trial court is required to consider whether termination of parental rights is in the juvenile's best interest. N.C. Gen.Stat. § 7B–1110(a) (2011). In making this determination,
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.
Id. It is within the province of the trial court to weigh these factors, and the court may assign more weight to one or more than others. E.g. In re C.L.C., 171 N.C.App. at 448, 615 S.E.2d at 709. We review the trial court's decision to terminate parental rights for abuse of discretion. In re Anderson, 151 N.C.App. 94, 98, 564 S.E.2d 599, 602 (2002) (citation omitted). “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).
Although denominated as a conclusion of law, the court's determination as to the lack of a strong bond between the juveniles and respondent-mother is more truly a finding of fact because it is a logical determination based upon evidentiary facts. See Helms, 127 N.C.App. at 510, 491 S.E.2d at 675. We are bound by the trial judge's findings of fact “where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary.” In re Montgomery, 311 N.C. 101, 110–11, 316 S.E.2d 246, 252–53 (1984).
We find evidence in the record to support the finding. The children's therapist testified that the children have not asked to see their parents and have not seen them in two years. The older child testified that although she loves her mother and father, she does not want to live with them. In testifying to her understanding of the prospect of adoption by her foster family, the older child, who was eleven at the time of trial, agreed that she could accept not ever speaking to her parents again and that it was more important to her to maintain her relationship with her foster family than with respondents.
In addition, two social workers stated in a report to the court that when the children talk on the telephone with their parents during court-ordered weekly telephone sessions, the children are much more eager to speak with their father than their mother. They also replaced a photograph of their mother on their bedroom dressers with a photo of themselves and their father. The younger child does not read letters from her mother.
When comparing the bond between respondents and the juveniles and the bond between the juveniles and their foster parents, the court determined that the bond between the juveniles and the respondents was poor and relatively non-existent, and that the bond between the juveniles and their foster parents was strong and sincere. The trial court found that it was in the best interest of each juvenile that the parental rights of respondent-mother be terminated. We find no abuse of discretion.
Accordingly, we affirm the portion of the orders terminating the parental rights of respondent-mother. We reverse the portion of the orders terminating the parental rights of respondent-father.
Affirmed in part; reversed in part. Judges ELMORE and ERVIN concur.
Report per Rule 30(e).