Opinion
No. 07-1350.
Filed March 4, 2008.
New Hanover County Nos. 03JT414-15.
Appeal by Respondent from order entered 7 September 2007 by Judge J. H. Corpening, II, in New Hanover County District Court. Heard in the Court of Appeals 18 February 2008.
No brief filed for Petitioner-Appellee New Hanover County Department of Social Services. Pamela Newell Williams, N.C. Administrative Office of the Courts, for Guardian ad Litem-Appellee. Lisa Skinner Lefler for Respondent-Appellant.
Respondent appeals from an order terminating her parental rights to M.J.M. and M.L.S. We affirm.
On 5 October 2001, Petitioner New Hanover County Department of Social Services ("DSS") filed a petition alleging that Respondent's five children, including M.J.M. and M.L.S., were neglected and dependent. The trial court subsequently adjudicated all of the children neglected and dependent. On 30 September 2003, DSS filed a petition to terminate Respondent's parental rights, and the trial court held a hearing on the petition in February 2004. The court terminated Respondent's parental rights on 22 September 2004. In an opinion filed 4 April 2006, this Court reversed the termination order on the ground that the trial court failed to reduce its order to writing and enter it in a timely manner. In re D.S., 177 N.C. App. 136, 628 S.E.2d 31 (2006).
On 30 March 2007, DSS filed a petition to terminate Respondent's parental rights to M.J.M. and M.L.S., but not to the other three children. The trial court held a hearing on the petition on 9 July 2007. By order entered 7 September 2007, the court terminated Respondent's parental rights to M.J.M. and M.L.S. As grounds for terminating Respondent's parental rights, the court concluded that Respondent neglected the children and that there was a probability that the children would be neglected again if returned to Respondent's care, and that Respondent willfully left the children in foster care for more than twelve months without showing that reasonable progress under the circumstances had been made in correcting the conditions which led to the removal of the children. On appeal, Respondent contends the trial court (1) erred in concluding that neglect was likely to continue and that Respondent failed to make reasonable progress, and (2) abused its discretion in concluding that "the best interests of the minor children will be served by termination of [her] parental rights[.]"
According to DSS's attorney at the second termination hearing, during the interim between the first termination order and this Court's 2006 opinion, the other three children, "who are over the age of 12[,]" "indicated that they do not wish to be reunited, and so [DSS] then did not pursue terminating [Respondent's] parental rights in regard to those children and proceeded only as to the two youngest of the children. . . ."
"`The standard of review in termination of parental rights cases is whether the [trial court's] findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the [trial court's] conclusions of law.'" In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004) (quoting In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984)). "If unchallenged on appeal, findings of fact `are deemed supported by competent evidence' and are binding upon this Court." In re J.M.W., 179 N.C. App. 788, 792, 635 S.E.2d 916, 919 (2006) (quoting In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003)).
The determination of neglect is a conclusion of law. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997). A neglected juvenile is one
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. 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.
N.C. Gen. Stat. § 7B-101(15) (2005). To adjudicate a juvenile neglected, there must be a showing that the juvenile is physically, mentally, or emotionally impaired, or that there is a substantial risk of such impairment, as a consequence of the failure to provide proper care, supervision, or discipline. In re Safriet, 112 N.C. App. 747, 436 S.E.2d 898 (1993). "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) (citation omitted).
If there is no evidence of neglect at the time of the termination proceeding, however, parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to her parents.
In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (citation omitted).
If the court concludes that grounds exist for terminating parental rights, it must then determine whether terminating those rights is in the juvenile's best interest. N.C. Gen. Stat. § 7B-1110(a) (2005). The decision to terminate parental rights is vested within the sound discretion of the trial judge and will not be overturned on appeal absent a showing that the judge's decision was manifestly unsupported by reason. In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45 (2005). In making its decision, the court considers: (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; and (6) any other relevant consideration. N.C. Gen. Stat. § 7B-1110(a).
Preliminarily, we note Respondent assigned error to eight of the trial court's thirty-one findings of fact. In her brief, Respondent sets forth the numbers of these assignments of error, but presents no reason or argument specifically addressed to the issue of whether the findings to which the numbers correspond are supported by the evidence. Thus, all of the court's findings are presumed supported by competent evidence and are binding on appeal. J.M.W., 179 N.C. App. 788, 635 S.E.2d 916; N.C. R. App. P. 28(b)(6) ("Assignments of error . . . in support of which no reason or argument is stated or authority cited, will be taken as abandoned."). Nevertheless, out of an abundance of caution, we have thoroughly reviewed the record before us and have determined that the eight "challenged" findings are supported by the evidence.
The trial court found:
5. That custody of the three older siblings was granted to the maternal great grandparents by the Family Court of New York when [Respondent] and these three children resided in New York. [Respondent] indicates that she was young and that the New York child welfare authorities were involved in the decision that the [] grandparents obtained custody and that it was at least in part her choice that her grandmother . . . take the children rather than that the State of New York take the children.
Throughout our recitation of the trial court's findings of fact, we refer to Respondent's grandparents, the childrens' great grandparents, as the grandparents.
Respondent was born in 1975.
6. That at some time after the birth of [M.J.M. in 1995], [Respondent, the grandparents,] and the four children moved to Montgomery, Alabama, where [M.L.S.] was born [in 1998]. That custody of [M.J.M.] was granted to her father. . . . According to [Respondent], [the father] never obtained actual physical custody of [M.J.M.] and pursuant to Order of February 1999, custody of [M.J.M.] was restored to her mother with the Court noting the family's intention to relocate to North Carolina.
7. That social services in Montgomery, Alabama[,] provided protective services for children to [Respondent] and the children. Protective services were needed because, as Respondent acknowledges, [of] her grandfather's drinking. That Respondent was provided instruction in Alabama on homemaking and parenting skills.
8. That [Respondent] and her grandparents . . . and the five children moved to North Carolina in Summer 2000. By October 2000, the two families had moved to New Hanover County. That the three older siblings resided primarily with [the grandparents], their custodians pursuant to the New York order and [M.J.M. and M.L.S.] resided with [Respondent]. Both families resided in the same public housing development in Wilmington, North Carolina.
9. That on 5 October 2001, the three older siblings were placed in foster care pursuant to an Order of Nonsecure Custody. The three children were removed from the home of [the grandparents]. That [DSS] provided protective services to the five children for some time prior to the removal of the three children from the home of [the grandparents]. That the oldest daughter had presented a behavior problem in school and [DSS] social worker, Jennifer Difede, arranged for a mental health evaluation and subsequent counseling. As [the grandfather] was drinking on a near constant basis and [the grandmother's] health had deteriorated and she experienced difficulty walking, it was [Respondent's] responsibility to get the oldest daughter to counseling appointments. [DSS] provided transportation to the mental health center but it was only when Ms. Difede actually transported [Respondent] and her daughter that counseling appointments were kept.
10. That conditions in the [grandparents'] home continued to deteriorate. [The grandfather] was always impaired by alcohol and at times was abusive to [the grandmother]. [The grandmother] was unable to provide adequate supervision and discipline of the children. The children stayed up all hours and overslept for school. On one occasion one of the boys raised a hammer to [the grandmother].
11. That [Respondent] failed to provide adequate care, supervision and discipline for [M.J.M.] and [M.L.S.] and pursuant to Order of Adjudication of 13 December 2001, finding all five children to be neglected and dependent, custody of all five children was granted to [DSS] for placement in foster care.
. . . .
4. That visitation between [Respondent] and [M.J.M.] and [M.L.S.] went well. Respondent completed the Family Nurturing Program offered through the Housing Authority at the housing development at which Respondent resided and pursuant to an Order entered 7 March 2002, [M.L.S.] was returned to the care of [Respondent] and on 15 March 2002, physical custody of [M.J.M.] was returned to the care of [Respondent]. . . .
. . . .
13. That on February 25, 2002, Social Worker Mark Murphy assumed responsibility for the case from Ms. Difede.
14. That during the school year from March 2002, until the end of school, [M.J.M.] missed some school and her academic delays continued. Social Worker Murphy addressed school concerns with [Respondent] encouraging her to check [M.J.M.'s] book bag every day for teacher's notes and to sign the child's reading log. That [Respondent] did not sign the child's reading log on a regular or consistent basis and [M.J.M.] had to repeat her grade.
15. That the three older siblings had home visitation with their mother during the period March 2002 until August 12, 2002. That during this visitation, there were occasions when the children visited in the home of [the grandparents] despite instructions to [Respondent] to supervise contact between the children and [the grandfather]. That two of the three older children spent the night in [the grandparents'] home and on another occasion the three older children visited in [the grandparents'] home without [Respondent].
16. That on 12 August 2002, Social Worker Mark Murphy, while making a home visit to another client in the housing development in which [Respondent] resided, observed [M.J.M.], then age seven, and [M.L.S.], then age four, outside in front of their residence. Mr. Murphy stopped and engaged the children in conversation and found that their residence was locked and they believed their mother had gone shopping and they were unsupervised. The temperature of the day was in excess of 90 degrees. Mr. Murphy took the children to [the grandparents'] home, but no one appeared to be at the residence.
17. That 12 August 2002 was the first day of school for the 2002-2003 school year and [M.J.M.] did not attend school. According to [Respondent], [M.J.M.] had overslept.
18. That Mr. Murphy placed the children in his automobile and brought them back to the offices of [DSS] for placement in foster care. As Mr. Murphy and the children were leaving the housing development, Mr. Murphy observed [the grandparents] returning to their residence in their automobile.
. . . .
4. . . . Pursuant to Order of 11 August 2002 [sic], physical custody of [M.L.S.] and[M.J.M.] was returned to [DSS] and [the girls] were placed in foster care where they remain.
. . . .
19. That all five children referred to [the grandparents] as "Mom" and "Dad." [M.L.S.] at times refers to [Respondent] as "Mom," while the other four children refer to her and call her by her given name, "g[]." That the bonds of affection and dependency were more apparent between the children and [the grandparents] than between the children and their mother. Especially among the three older children and their mother the relationship is more of a sibling nature.
20. That throughout the time that Social Worker Mark Murphy worked with [Respondent] including the time that [M.L.S.] and [M.J.M.] were in [Respondent's] care, [Respondent] did not demonstrate an ability to provide routine structure for her children and further did not demonstrate ability to control the children's fighting among themselves or other appropriate parenting behaviors notwithstanding her completion of a parenting course. [Respondent] does not appear to plan well or to carry out simple plans. Respondent brought a cake to visitation to celebrate one of her children's birthdays but did not bring a knife to cut the cake, napkins[,] or plates.
21. That throughout the time [DSS] maintained custody of the children, the expectations for [Respondent] as documented in the case plans were for [Respondent] to obtain and maintain employment, participate in visitation with the older children, support [M.J.M.] to be successful in school and to comply with the protection plan that she would at all times supervise her children's contact with [the grandfather] and ensure that her children were provided adequate supervision in her home. That [Respondent] has had a variety of jobs and did not maintain regular employment for months on end. [Respondent] elected to work informally styling hair in her home or other people's residences. That [Respondent] did not abide by the protection plan and did not ensure [M.J.M.'s] regular attendance at school. That [Respondent] did maintain fairly consistent and regular visitation with her children who were placed in foster care. [Respondent] was usually accompanied at visitation by [the grandmother], and at times by both [grandparents].
. That [Respondent] gave birth on November 30, 2003, to a sixth child [] who remains in her care and custody. That Respondent experienced complications at [the child's] birth and [the child] has significant disabilities resulting from these complications. That [Respondent] appears to be doing an adequate job of parenting this child with support from United Cerebral Palsy and other health care service providers in meeting [the child's] needs. Respondent has not maintained a relationship with this infant's father who has a substance abuse history and a history of domestic violence. That the infant's father's abuse of substances and reputation for abuse of substances led to his arrest for marijuana possession while in [Respondent's] apartment. [Respondent] tested positive for marijuana during this relationship. In September 2003, [Respondent] was sentenced to six days in jail for failing to pay fines in accordance with a probationary judgment.
. That since the birth of her sixth child, [Respondent] has been prescribed and is taking antidepressant medication which she indicates helps her to function more adequately. [Respondent] married [C.C.], who is not the father [of] any of her children but who appeared to be a stable, responsible individual. That [Respondent] and her husband are separated at this time.
. That [Respondent] does not have independent housing and she and her [sixth child] are at this time staying with a friend whom Respondent refers to as her "Godmother."
. That [the sixth child's] disabilities are permanent and serious and at this time require and will for the foreseeable future require dedication of [Respondent's] full attention and energies as well as considerable community support to the extent that addition of two children to the home of [Respondent] would likely overtax Respondent's emotional and intellectual capacities.
. That [M.J.M.] is placed in a foster home which is committed to her adoption and in which she has been placed since March 2004.
. That it is highly unlikely that any of the five children will ever return to the home of [Respondent]. That the two boys do not desire to be adopted but do wish to remain in their placements until adulthood. That the oldest daughter does not desire to be adopted at this time but is not in a stable permanent placement.
. That an Order was entered 22 August 2004, terminating [Respondent's] parental rights to all five of her older children. From that judgment Respondent appealed and the judgment was reversed by the North Carolina Court of Appeals on the basis the Order was not timely entered.
. That since the Order of 22 August 2004, [the grandmother] died and [the grandfather's] health deteriorated significantly. That despite concerns about [the grandfather's] behavior toward Respondent herself when she was young and his behavior toward her eldest daughter, Respondent and her husband with [the sixth child] moved into [the grandfather's] home. That Respondent minimizes the extent of [the grandfather's] proclivities toward sexual contact with young girls and reports that now that [the grandfather] is not drinking and in ill health, there is no risk to [the sixth child] or any of her other daughters.
. That [Respondent] does not even at this hearing acknowledge that she bears any responsibility for the removal of [M.L.S.] and [M.J.M.] from her care on August 12, 2002, and persists in accusing Social Worker Murphy of misrepresenting the circumstances and persists in insisting that [M.L.S.] and [M.J.M.] were not left alone or unsupervised on that day and that there is no significance to a child's missing the first day of school.
. That [Respondent] did not keep three out of five appointments which were made for her with a psychologist for a psychological evaluation. Respondent has not completed her GED, but indicates that she still has plans to do so and should graduate in August 2007. Respondent has worked as a CNA and health care provider at least on a part time basis. Respondent has now been employed at Bojangles['] Restaurant for two months. Respondent takes care of [the grandfather's] health needs and helps maintain his household and cooks for him.
Respondent first contends these findings do not support the trial court's conclusion that the children had been adjudicated neglected and that they likely would be neglected again if returned to Respondent's care. Respondent argues that the trial court erred in concluding that she "would likely [] repeat the neglect" since the evidence shows she has been caring for her disabled child and her ailing grandfather, and that she cared for her paraplegic husband before the two separated. We are unpersuaded.
The trial court's eleventh finding of fact supports the conclusion that M.J.M. and M.L.S. had been adjudicated neglected. Several of the court's other findings support its conclusion that the children would likely be neglected in the future if returned to Respondent's care. While we agree with Respondent that the findings show she has been adequately caring for her disabled child and her grandfather, finding of fact number twenty-five shows that the return of M.J.M. and M.L.S. to Respondent's custody would likely overtax Respondent's capabilities. Additionally, in finding number twenty-one, the court found that " throughout the time [DSS] maintained custody of the children," Respondent failed to abide by her case and protection plans. (Emphasis added). In finding number twenty-nine, the court found that Respondent and her disabled daughter moved into the home of Respondent's grandfather, a man with "proclivities toward sexual contact with young girls[.]" In finding number thirty, the court found that, five years after the original adjudication of neglect, Respondent still did not acknowledge any responsibility for the children's removal from her custody. In finding twenty-four, the court found that Respondent did not have stable housing. In finding twenty-two, the court found that Respondent has tested positive for marijuana and has been incarcerated for a probation violation. Finally, the court in findings fourteen, sixteen, seventeen, and thirty-one found that Respondent has inadequately supervised M.J.M. and M.L.S.
We hold the trial court's findings of fact support its conclusion that there is a probability of repetition of neglect if the juveniles were returned to Respondent. Respondent's argument to the contrary is overruled. In light of this holding, we need not address Respondent's additional contention that the trial court erred in concluding that she failed to make reasonable progress under the circumstances towards correcting the conditions that led to the removal of the children from her custody. See In re Swisher, 74 N.C. App. 239, 328 S.E.2d 33 (1985) (stating that if any of the grounds upon which an order terminating parental rights is based are supported by the findings of fact, the order appealed from should be affirmed). Respondent next contends that the trial court abused its discretion in terminating her parental rights. Again, we disagree. The court's findings indicate that termination of Respondent's parental rights will afford the children an opportunity for adoption and permanence, in furtherance of their permanent plan. Although the court made no finding on the likelihood of adoption of M.L.S. or on the quality of the relationship M.L.S. has with a proposed permanent caregiver, the court in finding number twenty-six found that M.J.M. was with a foster care family that is committed to her adoption, and that M.J.M. had been in that home since March 2004. In finding number nineteen, the court commented unfavorably on the nature of the bond between Respondent and the children. In sum, we agree with the trial court that termination of Respondent's parental rights "will afford the children opportunity for security, safety[,] and stability." We disagree with Respondent's assertion that "[f]or years now, [she] has demonstrated that she is an appropriate parent for her children." The trial court did not abuse its discretion in terminating Respondent's parental rights.
Affirmed.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).