Opinion
No. COA12–1409.
2013-05-7
In the Matter of J.K.T.
Theresa A. Boucher for petitioner-appellant Forsyth County Department of Social Services. J. Thomas Diepenbrock for respondent-appellee.
Appeal by petitioner from order entered 11 July 2012 by Judge Denise S. Hartsfield in Forsyth County District Court. Heard in the Court of Appeals 17 April 2013. Theresa A. Boucher for petitioner-appellant Forsyth County Department of Social Services. J. Thomas Diepenbrock for respondent-appellee.
Womble Carlyle Sandridge & Rice, LLP, by Murray C. Greason, III, for guardian ad litem.
DAVIS, Judge.
Petitioner Forsyth County Department of Social Services (“DSS”) appeals the trial court's order denying its petition to terminate the parental rights of respondent-mother J.D. (“respondent-mother”) with respect to her son J.K.T. (“John”). After careful review, we affirm.
Pseudonyms are used throughout this opinion to protect the privacy of the minors and for ease of reading. N.C. R.App. P. 3.1(b).
Factual Background
Respondent-mother and respondent-father P.B. are the biological parents of John. John was born with ventricular septal defect, a condition commonly referred to as a “hole” in the heart. John's condition initially required close medical supervision and medication. Guilford County Department of Social Services (“GCDSS”) became involved with respondent-mother's family in January 2010 following a report of medical neglect after respondent-mother—who was 17 years old at the time—“ran away” with John and missed two medical appointments.
GCDSS held a child family team meeting with respondent-mother, respondent-father, and John's paternal grandmother. At the meeting, respondent-mother reported that she had been diagnosed with bipolar disorder and that she had stopped taking her medication. Respondent-father also stated that he had mental health issues, including schizoaffective disorder. John's grandmother, who lived in Forsyth County, agreed to provide housing for the family and to assist in taking John to his medical appointments.
On 20 May 2010, the Winston–Salem Police Department was called to the home due to a report of domestic violence between respondent-mother and respondent-father. DSS later found out about an earlier incident of domestic violence which had occurred on 6 May 2010. Respondent-mother left the home and moved first to her mother's residence in Guilford County, then to an aunt's residence in Chapel Hill, and then back to Forsyth County.
In July 2010, John underwent surgery for his heart condition. Following the surgery, respondent-mother and John returned to John's grandmother's home. At that time, respondent-mother entered into a safety plan agreeing that there would be no domestic violence in John's presence.
On 10 August 2010, DSS visited the home and found John doing well. Respondent-mother reported that there had been no further incidents of domestic violence. She and respondent-father agreed to continue to cooperate with DSS and to address their respective mental health issues. However, later on the same day, respondent-father called DSS to report an argument with respondent-mother. Respondent-father indicated that John was in serious danger while in respondent-mother's care and that DSS needed to come pick up the child “before it [was] hurt and dead.” A DSS social worker, accompanied by law enforcement officers, returned to the home and located respondent-mother and John. Respondent-mother admitted to having had an argument with respondent-father.
Due to respondent-mother's frequent moves, the history of domestic violence between her and respondent-father, and their failure to adequately address their respective mental health issues, DSS obtained nonsecure custody of John. An adjudication hearing was held on 16 February 2011, and in an order entered 25 March 2011, the trial court adjudicated John to be neglected and dependent. The court ordered that custody remain with DSS. On 13 March 2011, respondent-mother and respondent-father, who were still living together, got into an argument that resulted in both of them being arrested.
Respondent-mother, who was pregnant with her second child, moved to Pennsylvania in June 2011. She remained in weekly contact with DSS to inquire about John's well-being. While living in Philadelphia, respondent-mother gave birth to her second son, J.L. (“Jacob”). In October 2011, respondent-mother moved back to Guilford County with Jacob. After being evicted from an apartment in April 2011, respondent-mother moved in with Jacob's father and his mother, C.L.
On 25 January 2012, DSS filed a petition to terminate respondent-mother's and respondent-father's parental rights. A hearing on the petition was held on 11 June 2012. The trial court issued an order on 11 July 2012, dismissing the petition based on its determination that DSS had failed to establish the existence of any basis for termination. DSS gave notice of appeal to this Court on 10 August 2012.
The record indicates that the trial court continued the termination proceedings with respect to respondent-father as he had recently relinquished his parental rights to John but the revocation period had not yet expired.
On 21 September 2012, DSS filed a motion to set aside the trial court's 11 July 2012 order, alleging that respondent-mother had falsely testified at the termination hearing. The trial court entered an order on 13 November 2012 in which it noted that it lacked jurisdiction to review the motion due to the fact that DSS had already taken an appeal from the 11 July 2012 order. The trial court nonetheless indicated how it would be inclined to rule on the motion if it did, in fact, have jurisdiction to do so. While the trial court found that respondent-mother had made “false statements” at the termination hearing, the court considered them to be merely “embellishments on the part of a somewhat immature witness.” Thus, the trial court concluded that the respondent-mother's false statements did not “change [its] view” of the case. As a consequence, the court stated that, if it had jurisdiction to consider the motion, the motion would be denied.
Analysis
I. Standard of Review
Termination of parental rights proceedings include two phases: an adjudication phase followed by a disposition phase. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). At the adjudication stage, the petitioner has the burden of proving by clear, cogent, and convincing evidence the existence of at least one of the statutory grounds for termination set out in N.C. Gen.Stat. § 7B–1111 (2011). Id. at 247, 485 S.E.2d at 614. If the petitioner meets the burden of proving that at least one ground for termination exists, the trial court moves to the disposition phase to determine whether termination of parental rights is in the best interest of the child. N.C. Gen.Stat. § 7B–1110(a) (2011).
In reviewing a trial court's order addressing the termination of parental rights, the appellate court ordinarily reviews the order to determine whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact, in turn, support the court's conclusions of law. In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). However, where, as here, the appellant fails to challenge any of the trial court's findings of fact, the court's findings are presumed to be supported by competent evidence and are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Thus, the sole issue in this appeal is whether the trial court's uncontested findings support the court's conclusions of law.
II. Grounds for Termination
In its petition to terminate respondent-mother's parental rights, DSS alleged that grounds existed for termination under N.C. Gen.Stat. § 7B–1111(a)(1) (neglect) and N.C. Gen.Stat. § 7B–1111(a)(2) (failure to make reasonable progress in correcting conditions that led to juvenile's removal). The trial court made the following findings of fact in support of its conclusion that DSS had failed to meet its burden of proof with respect to both grounds:
12. The minor child was adjudicated to be a neglected and dependent juvenile ... on February 16, 2011. At disposition, the Court granted custody of [John] to DSS and ordered the Respondent Mother to do the following:
a. Complete a parenting capacity assessment/psychological evaluation and comply with any recommendations the psychologist may make pursuant to that assessment;
b. Attend weekly visitations with the minor child at Forsyth County DSS;
c. Attend all therapy and medication management appointments with NuDay case services and follow all recommendations;
d. Obtain domestic violence counseling and follow all recommendations[;]
e. Demonstrate an ability to provide a safe home for the juvenile and the ability to meet the needs of the juvenile.
....
26. Respondent Mother was ordered to submit to random drug screens as requested by DSS following the May 11, 2011 review hearing. Respondent Mother voluntarily submitted to two separate drug tests prior to adjudication, and each came back negative for all substances. No reference was made to Respondent Mother abusing drugs in the adjudication Order submitted to this Court. Although Respondent Father was ordered to submit to drug testing in the initial dispositional Order, Respondent Mother was not....
....
36. Respondent Mother has ... obtained independent outside employment, working at Compare Foods in Greensboro as a cashier. She has worked there for approximately one month, working approximately 40 hours per week, for $7.25 per hour.
37. [C.L.] has been assisting Respondent Mother with budgeting in anticipation of Respondent Mother and [Jacob] moving out on their own and getting their own apartment. Although Respondent Mother describes [Jacob's father] as her boyfriend, she does not plan for him to live with them, at least not immediately. She anticipates that [Jacob's father] will go to college, potentially in South Carolina, although she would prefer that he remain closer. Respondent Mother intends to be able to care for [Jacob] and [John] in her own home, and support them with her own income. Respondent Mother believes she can find an adequate apartment for herself and her two children for approximately $500.00 per month. She believes she will need $200.00 per month to cover utilities and her cell phone bill. She receives an additional $367.00 per month in food stamps. With [C.L.'s] assistance, Respondent Mother has opened a bank account and has accumulated $100–150 so far in savings.
38. Respondent Mother has benefitted a great deal from the assistance of [C.L.], and believes that she will continue to receive help and support from her even if the nature of her relationship with [Jacob's father] should change. Respondent Mother fully understands the possibility of a change in her relationship with him should he leave for college. She nevertheless anticipates that he and his family will continue to be supportive of her and [Jacob].
39. [Jacob's father] is much younger than Respondent Mother was initially led to believe. During the course of their relationship, he has been gentle, affectionate, and doting. Respondent Mother describes him as a “true gentleman.” Although they have had disagreements, none have resulted in violence.
40. Respondent Mother continues to have contact with Respondent Father, and spent the night prior to this hearing at his home in order to catch a ride with him to Court. She describes him as a friend. Although acknowledging that she still loves him, she does not believe that she can be in a relationship with him, and desires to put her children's needs first. Her 5 month absence from him, and her new relationship with [Jacob]'s father, seem to have calmed the volatility between the Respondent Parents. This Court has not been made aware of any domestic violence incident involving Respondent Mother since the March 2011 incident noted above.
41. Respondent Mother's testimony before this Court was thoughtful, insightful, and sincere. The experience of being a mother to [Jacob] has changed her in a number of positive ways. She expressed a sense of fulfillment and an increased sense of self-worth, which is very consistent with her calm, confident presentation. Respondent Mother did seem to minimize some of her problems, such as her domestic violence history with Respondent Father (as when she took pains to point out that he had never hit her with a closed fist). Overall, however, she readily acknowledges her mistakes and poor judgments and was able to articulate for the Court how she has grown since custody of [John] was first taken from her.
42. Respondent Mother has had 11 different residences in the past 22 months. Respondent Mother acknowledged that this degree of instability is potentially detrimental to a child, and could be highly stressful and distracting to a parent.
43. The Court does not believe that Respondent Mother's unstable residency is primarily attributable to a feature of her personality or a result of her preferences. It is clear that Respondent Mother had a great deal of difficulty finding a safe place where she was welcome. When the case began, Respondent Mother had two primary housing options. The home with Respondent Father, which was unsuitable for the reasons noted in the findings above, and the home with her mother, which was also unsuitable and marred by perpetual conflict and abuse.... The Court is particularly mindful of the fact that when this case began, Respondent Mother was herself a minor child with very limited employment history. Respondent Mother did inquire into subsidized housing for herself and [John] and was told that there was an 18 month waiting list. In sum, while Respondent Mother has gone through a great deal, this Court is unpersuaded that Respondent Mother's difficulties in establishing suitable, stable housing have been willful, nor that they are likely to continue. Respondent Mother knows what she needs to do to provide an appropriate home for herself and her children, and is working and budgeting appropriately in order to make that happen in the near future. The Court is satisfied that Respondent Mother has made reasonable progress in correcting this particular condition.
44. Respondent Mother completed her domestic violence assessment, but did not follow up with the recommended treatment. She was told to attend 25 weekly classes, for which she would have to personally pay $20.00 per class. Initially, Respondent Mother was deterred by these fees, which she was told DSS would not pay. It is clear that Respondent Mother was ordered by the Court to attend these classes, and that she failed to do so. This Court finds, however, that Respondent Mother is currently at a much lesser risk for being involved in domestic violence than she was when the case began. She is more mature, more confident, and more independent. The incidents in which she was involved all stemmed from her romantic relationship with Respondent Father, whose mental illness complicated things considerably. Respondent Mother has moved on, and the relationship between the Respondent Parents has changed as noted above. Respondent Mother convincingly expressed a firm resolve before this Court not to permit any such behavior around herself or her children ever again. While Respondent Mother may benefit from completing the recommended classes, this Court finds that it is unlikely Respondent Mother will be involved in future incidents of domestic violence. The Court is not persuaded that there is a likelihood Respondent Mother would neglect [John] in the future by exposing him to domestic violence, simply because she has not completed recommended classes. Respondent has made at least reasonable progress in correcting this particular contributing condition (domestic violence) which led to the child coming in to care.
45. Respondent Mother has a spotty record of visitation with [John].... Respondent Mother has experienced considerable difficulty getting back and forth from her home in Guilford County (where she has primarily resided since the early days of the case ... ) and Forsyth County where her visits with the child are held.... [Using public transportation] has been very difficult when she has had to bring her infant [Jacob] with her, and was also difficult during her pregnancy. The court did not feel that the transportation issues or lack thereof translated into an inability to parent or a lack of concern for the minor child. The evidence showed that when visits were made, that they were appropriate with gifts, toys and appropriate celebration and bonding.
46. Respondent Mother has never failed a drug test, although there have been a couple of drug tests to which she has failed to submit. Respondent Mother has been taking hair tests, as well as urine tests. The hair tests are supposed to show drug use going back for a period of months. Each test she has completed ha [s] come back negative for all substances. This Court heard no evidence suggesting Respondent Mother has or has had a drug problem that would negatively impact her ability to competently parent [John].
....
48. The Court heard no evidence that Respondent Mother has any mental illness or condition which would hinder her ability to parent [John].... The Court heard no other evidence that Respondent Mother currently requires psychiatric care or medication.
49. Respondent Mother has not successfully completed all of Dr. Holm's recommendations. She has a regular means of financial support sufficient to meet her needs and those of her children. She has an adequate understanding of [John's] medical condition and needs. She has an adequate understanding of normal child development and common parenting strategies. She has not been able to maintain a stable home setting. She has not engaged in individual counseling through DSS, and nor was this ever offered to her. Respondent Mother appears to have made a commitment to a stable lifestyle and a healthy, violence-free relationship with others.
50. The Department of Social Services in Guilford County has become involved with Respondent Mother and [Jacob], after an anonymous caller called in a report that [Jacob] appeared to her to be small for his age. Guilford County DSS has not removed [Jacob] from Respondent Mother's custody. According to Respondent Mother, Guilford County DSS has offered in-home services to her in part to assist her with this present case. The fact that Respondent Mother has been able to retain custody of [Jacob] since her return to North Carolina despite the watchful eyes of two Departments of Social Services indicates to the Court that Respondent Mother has been providing adequate care for [Jacob].
51. Dr. Holm's overall impression following his March 2011 evaluation was that Respondent Mother was not prepared to assume full-time care of [John] at that time. Dr. Holm acknowledged before this Court, however, that that impression would need to be reconsidered in light of the changed circumstances since that time, including Respondent Mother's apparently adequate parenting of [Jacob] since his birth, her success with finding employment and making strides to budget and save in order to care for her children within her means, her gentle and peaceful relationship with [Jacob's father], and the very helpful relationship with [C.L.], and the change in her relationship with Respondent Father, among others.
52. DSS has presented ample evidence to establish Respondent Mother's failure to successfully abide by the Orders of the Court entered in the underlying case to assist her in her efforts to reunify with [John]. After careful consideration of all of the evidence presented, the Court cannot say that a repetition of neglect would be likely were [John] to be returned to Respondent Mother's care. Similarly, the Court cannot find or conclude that Respondent willfully left [John] in foster care without making reasonable progress to correct the conditions which led to [John] coming into and remaining in [DSS's] care, in light of the progress she has made against difficult circumstances.
Based on these findings, the trial court concluded that DSS had failed to meet its burden of proving grounds existed to terminate respondent-mother's parental rights and dismissed DSS's petition.
A. Neglect
Pursuant to N.C. Gen.Stat. § 7B–1111(a)(1), a trial court may terminate parental rights if the parent has “neglected the juvenile .” Chapter 7B of the General Statutes defines a “[n]eglected juvenile” as
[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).
A “prior adjudication of neglect may be admitted and considered by the trial court in ruling upon a later petition to terminate parental rights on the ground of neglect.” In re Ballard, 311 N.C. 708, 713–14, 319 S.E.2d 227, 231 (1984). The trial court must, however, still focus on “the fitness of the parent to care for the child at the time of the termination proceeding.” Id. at 715, 319 S.E.2d at 232 (emphasis omitted). Where, as here, the child has not been in the parent's custody “for a significant period of time prior to the termination hearing, ... 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 Shermer, 156 N.C.App. 281, 286, 576 S.E.2d 403, 407 (2003).
DSS argues that it presented clear and convincing evidence of neglect and that the trial court, therefore, erred in not finding the existence of this basis for termination. While DSS may be correct that it presented evidence that might support findings contrary to those made by the trial court in this case, it is fundamental that the trial court is assigned the task of “determin[ing] what pertinent facts are actually established by the evidence before it, and it is not for an appellate court to determine de novo the weight and credibility to be given to evidence disclosed by the record on appeal.” Coble v. Coble, 300 N.C. 708, 712–13, 268 S.E.2d 185, 189 (1980).
As noted above, DSS does not challenge any of the trial court's findings of fact. These findings establish that the court considered John's prior adjudication of neglect as well as the evidence of change in conditions. Notably, the trial court found that respondent-mother had obtained domestic violence counseling. Although she had been financially unable to continue with the follow-up treatment, the court concluded that the risk of future incidents of domestic violence was significantly diminished due to respondent-mother's termination of her volatile romantic relationship with respondent-father and the more mature nature of her relationship with Jacob's father.
The trial court also found that respondent-mother had obtained stable employment and had begun to develop budgeting and other financial skills that would enable her to care for John and Jacob. The trial court acknowledged that respondent-mother had struggled to maintain stable housing; however, it determined that much of this instability was due to circumstances beyond respondent-mother's control and that she had made reasonable progress in correcting this condition.
The trial court further found that although respondent-mother had not completed all of the recommendations in her parenting and psychological assessments, she had an adequate understanding of John's medical condition and needs, of normal child development, and of common parenting strategies. The court also observed that respondent-mother had made a commitment to a stable lifestyle and a healthy, violence-free relationship with other people. The trial court also found it significant that, “despite the watchful eyes of two Departments of Social Services,” respondent-mother had maintained custody of Jacob—a fact suggesting that she had developed adequate parenting skills.
As for the concerns regarding respondent-mother's mental health issues, the trial court observed that although it had initially been reported that respondent-mother was diagnosed with bipolar disorder and that she required medication, the report was never confirmed. There was no evidence, the court found, that respondent-mother required psychiatric treatment or medication. The court further observed that she had never failed a drug test and that there was no evidence that she had a substance abuse problem.
Ultimately, the trial court determined that it could not find that “a repetition of neglect would be likely were [John] to be returned to Respondent Mother's care.” These findings support the trial court's conclusion that DSS failed to satisfy its burden of proving neglect. See In re J.K.C., –––N.C.App. ––––, ––––, 721 S.E.2d 264, 270 (2012) (concluding trial court properly dismissed termination petition based on neglect where “trial court made findings of fact that the children were adjudicated neglected juveniles,” considered “evidence of changed conditions, including respondent's ‘substantial compliance with his case plan[,]’ and did not find the probability of repetition of neglect”).
B. Willful Failure to Make Reasonable Progress
Parental rights may also be terminated when “[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); In re Baker, 158 N.C.App. 491, 494, 581 S.E.2d 144, 146 (2003). A finding of willfulness does not require evidence of fault by the parent; it may be established by evidence showing that the parent had the ability to make reasonable progress, but was unwilling to make the effort. In re Fletcher, 148 N.C.App. 228, 235, 558 S.E.2d 498, 502 (2002).
In its 25 March 2011 order adjudicating John neglected and dependent, the trial court ordered respondent-mother to (1) complete a parenting capacity assessment and psychological evaluation; (2) attend weekly visitation with John; (3) attend therapy and medication management appointments; (4) obtain domestic violence counseling; and (5) demonstrate the ability to provide a safe home for John and the ability to meet his needs. The trial court's findings reflect its thoughtful consideration of the evidence of both respondent-mother's shortcomings and her progress with respect to correcting the conditions that led to John's removal. As the trial court observed in finding that DSS had failed to meet its burden of proof:
Proof that Respondent Mother has failed to comply with certain Orders of the Court does not necessarily mean that she has failed to make reasonable progress in correcting those conditions the Orders were intended to address. Respondent Mother's strides with regard to housing, domestic violence, emotional stability, employment, and her level of functioning as a parent of a young infant constitutes genuine progress.
The trial court's findings, set out above, establish that respondent-mother made significant progress in complying with the recommendations stemming from her parenting/psychological assessment and in developing the skills necessary to provide a safe and stable home for John. The court found that while respondent had trouble travelling to visits with John, and thus her record was “spotty at best,” the court also noted that the transportation difficulties did not reflect a lack of concern for the child. During those visits that had occurred, respondent-mother brought John gifts and bonded appropriately with him. The court also found that previous concerns regarding domestic violence had diminished in light of respondent-mother's termination of the romantic relationship with respondent-father.
While DSS points to contrary evidence in the record, we note that DSS failed to contest the evidentiary basis for any of the trial court's findings regarding § 7B–1111(a)(2). These “unchallenged findings of fact ... support the trial court's conclusion that the evidence does not clearly and convincingly show that [respondent-mother] willfully left [John] in foster care without making reasonable progress to correct the conditions which led to the removal of the [juvenile] from [respondent-mother]'s home.” J .K.C., –––N.C.App. at ––––, 721 S.E.2d at 271. Accordingly, we affirm the trial court's dismissal of DSS's petition to terminate respondent-mother's parental rights.
III. Evidence of the Child's Best Interest
Finally, DSS argues that the trial court erred by not also receiving, and considering, evidence of John's best interest at the termination hearing. We disagree. As our Juvenile Code makes clear, only “ [a]fter an adjudication that one or more grounds for terminating a parent's rights exist” is the trial court required to “determine whether terminating the parent's rights is in the juvenile's best interest.” N.C. Gen.Stat. § 7B–1110(a) (emphasis added). Where, as here, the trial court determines that no grounds for termination were proven by clear, cogent, and convincing evidence, “the dispositional stage where the best interests of the child are considered” is not reached. In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001). Thus the trial court, in this case, did not err by failing to consider evidence concerning John's best interest. Accordingly, we affirm.
Conclusion
For the reasons stated above, we affirm the trial court's order denying DSS's petition to terminate respondent-mother's parental rights.
AFFIRMED. Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).