Opinion
COA22-912
08-15-2023
IN THE MATTER OF: P.W.
Forsyth County Department of Social Services, by Assistant County Attorney Melissa Starr Livesay. Matthew D. Wunsche for guardian ad litem. Jeffrey William Gillette for respondent-appellant mother.
UNPUBLISHED OPINION
Heard in the Court of Appeals 31 July 2023.
Appeal by respondent-mother from order entered 2 August 2022 by Judge Thomas W. Davis V in Forsyth County No. 20 JT 205 District Court.
Forsyth County Department of Social Services, by Assistant County Attorney Melissa Starr Livesay.
Matthew D. Wunsche for guardian ad litem.
Jeffrey William Gillette for respondent-appellant mother.
FLOOD, Judge.
Respondent-mother appeals a trial court order terminating her parental rights to her minor child P.W. ("Penny")., We affirm the trial court's order.
A pseudonym is used to protect the identity of the juvenile and for ease of reading.
The trial court also terminated the parental rights of Penny's father who does not appeal the trial court order.
I. Factual and Procedural Background
Penny was born in October 2020. Forsyth County Department of Social Services ("DSS") filed a juvenile petition alleging her to be a neglected juvenile on 18 December 2020. The trial court granted DSS nonsecure custody in an order signed on 18 December 2020 and entered on 24 February 2021.
On 21 December 2020, the trial court continued nonsecure custody and authorized placement with Penny's maternal great aunt, who provided placement for respondent-mother's older son. The continued nonsecure custody order was signed 7 January 2021 and entered with the clerk of court on 12 January 2021. Respondentmother was allowed a minimum of two hours supervised visitation per week. When the maternal great aunt was unable to continue Penny's care, Penny was placed in a licensed foster care home in accordance with a nonsecure custody order rendered on 12 February 2021 and entered on 28 April 2021. Respondent-mother's visitation was reduced to a minimum of one supervised hour per week.
The trial court conducted an adjudication and disposition hearing on 9 June 2021. The trial court found that on the evening of 8 December 2020, respondentmother, her boyfriend, and Penny had been admitted to a shelter in Greensboro called the Interactive Resource Center. Respondent-mother lacked necessary items for Penny so the shelter purchased clothes, milk, and a portable crib. Respondentmother was observed giving Penny spoiled milk-despite the availability of readymade formula and milk bottles-and changing Penny's diaper only once during her stay at the resource center. During their stay, staff observed a domestic violence incident between respondent-mother and her boyfriend; law enforcement was contacted, but respondent-mother refused to cooperate when they arrived. Respondent-mother also refused long-term placement for herself and Penny unless her boyfriend was placed with her. A Child Protective Services ("CPS") report was filed, and a social worker met with respondent-mother on 9 December 2020. Respondent-mother denied any domestic violence between herself and her boyfriend and stated that she had previously made false reports. The social worker noted that respondent-mother had a permanency plan order entered in February 2020 regarding her older son. The permanency plan required respondent-mother to submit to a comprehensive mental health assessment, attend medication management appointments, follow any recommendations by her therapist/psychiatrist, and sign information releases for DSS to communicate with service providers. Respondentmother informed the social worker that she was not in treatment and was not taking any medication. The social worker created a safety plan addressing domestic violence and housing for respondent-mother and Penny with respondent-mother's maternal grandmother. Nevertheless, respondent-mother and Penny were admitted to a Salvation Army Shelter on 11 December 2020. Respondent-mother agreed to a new safety plan, again addressing domestic violence and housing.
After receiving reports about Penny's safety and welfare as well as respondentmother's threatened acts of violence against Penny, a shelter resident, and shelter staff, the social worker convinced respondent-mother to have Penny evaluated at a hospital. There, the social worker observed feces in Penny's vaginal area, a severe diaper rash, and spoiled milk bottles in her diaper bag. Also, respondent-mother admitted there was domestic violence between herself and her boyfriend. Because respondent-mother had no appropriate placement option, Penny was not discharged from the hospital to respondent-mother, and DSS filed the juvenile petition.
The trial court also noted that respondent-mother's older son had been placed in foster care in 2019 due to concerns about respondent-mother's mental health and adequate housing. The son had not been returned to respondent-mother's care. At the time of Penny's birth through the filing of the juvenile petition, respondentmother had not complied with In Home Services, and DSS had no information that she complied with any mental health treatment. As a result of respondent-mother's inability to show she had resolved issues relating to her housing, domestic violence, or mental health, Penny was adjudicated a neglected juvenile.
In the dispositional portion of its order, the trial court found that at the time of the 9 June 2021 hearing, respondent-mother resided in an apartment in High Point. DSS had referred respondent-mother to RHA in High Point for a mental health assessment and to Family Services for a domestic violence assessment, which recommended she attend twelve sessions of their Domestic Violence Support Group. Respondent-mother had thirty-nine visitation opportunities with Penny since 23 December 2020 but only visited Penny six times. The trial court's dispositional order provided that DSS would retain legal custody of the minor child and directed respondent-mother to comply with the following case plan:
a. Complete a comprehensive mental health assessment and follow all recommendations for psychotherapy and medication management.
b. Consistently attend visitation with [Penny] and participate in parent coaching service.
c. Maintain safe housing for herself and [Penny].
d. Follow all recommendations from her domestic violence assessment with Family Services.
e. Locate appropriate social supports to assist in providing care for [Penny].
f. Sign releases of information of [DSS] to communicate with her service providers.Respondent-mother's visitation remained one supervised hour per week, to coincide with Parenting Coaching services.
Following a hearing on 8 November 2021, the trial court entered a permanency planning order on 22 November 2021. The trial court found that respondent-mother was in partial compliance with the requirement to complete a comprehensive mental health assessment and follow through the recommendations for psychotherapy but was not in compliance with the requirements to consistently attend visitation, maintain safe housing, follow all domestic violence assessment recommendations, or locate appropriate social supports. Respondent-mother did sign releases of information for DSS to communicate with her service providers. DSS reported witnessing a domestic altercation between respondent-mother and her boyfriend at the courthouse following the 11 August 2021 review hearing. The trial court set the primary permanent plan as adoption along with a secondary permanent plan of reunification. Respondent-mother's visitation schedule was not changed.
The trial court conducted a permanency planning review hearing on 22 November 2021 and entered its order on 29 November 2021. The trial court's findings reflected no progress in respondent-mother's case plan since the 8 November 2021 hearing.
The trial court noted that respondent-mother had given birth to a boy (her boyfriend's son) at High Point Regional Hospital on 19 November 2021. She left the hospital on 21 November 2021 and Guilford County Department of Social Services ("Guilford DSS") received a CPS report concerning the newborn. When a social worker responded to respondent-mother's residence, she and her boyfriend were having a verbal altercation which became physical. The social worker stepped outside to call law enforcement who made a forcible entry into the residence through a barricaded door. Guilford DSS filed a juvenile petition and obtained nonsecure custody of the boy. The trial court continued Penny's primary permanent plan of adoption and changed the secondary plan to guardianship. The trial court also ceased reunification efforts. Respondent-mother's visitation was changed to one supervised hour per month.
The trial court conducted a permanency planning hearing on 11 March 2022 and entered its order on 27 April 2022. The trial court's findings reflect that respondent-mother was admitted to a domestic violence shelter on 16 February 2022 following a heated argument with her boyfriend at the Forsyth County courthouse but left the shelter with him five days later. Respondent-mother and her boyfriend also got into an altercation at the Guilford DSS on 1 March 2022. The altercation occurred when respondent-mother sought to schedule visitation with Penny, and the boyfriend did not support her efforts to regain custody.
The trial court found that respondent-mother was minimally compliant with her case plan: she had re-engaged with mental health services and medication management, but she had not adequately addressed the issue of domestic violence. Moreover, her pattern of instability in mental health and housing had not changed, and the trial court's concerns about domestic violence had increased. The trial court made no change to the permanent plans or to respondent-mother's visitation.
DSS filed a motion to terminate respondent-mother's parental rights in Penny on 11 March 2022. The alleged grounds for termination were neglect, pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (2021); willfully leaving the minor child in foster care for more than twelve months without showing reasonable progress in correcting the conditions which led to the removal, pursuant to N.C. Gen. Stat. § 7B-1111(a)(2); leaving the minor child in the care of DSS for six months while willfully failing to pay a reasonable portion of the cost of care, pursuant to N.C. Gen. Stat. § 7B-1111(a)(3); and being incapable of providing proper care and supervision such that the juvenile was dependent and there is a reasonable probability that such incapacity will continue, pursuant to N.C. Gen. Stat. § 7B-1111(a)(6).
The trial court conducted a hearing on 25 May 2022. Based on clear, cogent, and convincing evidence, the court adjudicated grounds to terminate respondentmother's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (6). The trial court determined termination of respondent-mother's parental rights was in Penny's best interests. The trial court entered an order terminating respondentmother's parental rights in Penny on 2 August 2022. Respondent-mother appeals.
II. Analysis
On appeal, respondent-mother challenges the trial court's adjudication of grounds to terminate her parental rights.
A termination of parental rights proceeding involves a two-stage process: an adjudication stage and a disposition stage. N.C. Gen. Stat. §§ 7B-1109 - 1110 (2021); In re N.D.A., 373 N.C. 71, 74833 S.E.2d 768, 771 (2019). "At the adjudicatory stage, the petitioner bears the burden of proving by 'clear, cogent, and convincing evidence' the existence of one or more grounds for termination under [ N.C. Gen. Stat] § 7B-1111(a)." In re A.R.A., 373 N.C. 190, 194, 835 S.E.2d 417, 420 (2019) (quoting N.C. Gen. Stat. § 7B-1109(f)). "[A]n adjudication of any single ground in [ N.C. Gen Stat.] § 7B-1111(a) is sufficient to support a termination of parental rights." In re N.B., 377 N.C. 349, 353, 856 S.E.2d 828, 834 (2021) (quoting In re E.H.P., 372 N.C. 388, 395, 831 S.E.2d 49, 53 (2019)). "We review a trial court's adjudication of grounds to terminate parental rights 'to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law.'" In re K.B., 378 N.C. 601, 607, 862 S.E.2d 663, 669-70 (2021) (quoting In re E.H.P., 372 N.C. at 392, 831 S.E.2d at 52); see also In re G.C., 384 N.C. 62, 65, 884 S.E.2d 658, 661 (2023) (resolving a mixed question of law and fact, "[a] trial court's finding of an ultimate fact is conclusive on appeal if the evidentiary facts reasonably support the trial court's ultimate finding [of fact]" (second alteration in original) (quoting State v. Fuller, 376 N.C. 862, 864, 855 S.E.2d 260 (2021))). "Unchallenged findings of fact 'are deemed supported by competent evidence and are binding on appeal.'" In re A.M., 377 N.C. 220, 225, 856 S.E.2d 801, 806 (2021) (quoting In re J.S., 374 N.C. 811, 814, 845 S.E.2d 66 (2020)).
Pursuant to N.C. Gen. Stat. § 7B-1111, a court may terminate parental rights upon a finding "[t]he parent has . . . neglected the juvenile," as defined by N.C. Gen. Stat. § 7B-101. N.C. Gen. Stat. § 7B-1111(a)(1) (2021). The definition of a neglected juvenile under section N.C. Gen. Stat. § 7B-101 includes one whose parent "[d]oes not provide proper care, supervision, or discipline" or "[c]reates or allows to be created a living environment that is injurious to the juvenile's welfare." N.C. Gen. Stat. § 7B-101(15)a., e. (2021). This "requires a showing of neglect at the time of the termination hearing or, if the child has been separated from the parent for a long period of time, there must be a showing of past neglect and a likelihood of future neglect by the parent." In re D.L.W., 368 N.C. 835, 843, 788 S.E.2d 162, 167 (2016). "When determining whether future neglect is likely, the trial court must consider evidence of changed circumstances occurring between the period of past neglect and the time of the termination hearing." In re Z.A.M., 374 N.C. 88, 95, 839 S.E.2d 792, 797 (2020). "A parent's failure to make progress in completing a case plan is indicative of a likelihood of future neglect." In re M.S.E., 378 N.C. 40, 48, 859 S.E.2d 196, 205 (2021) (quoting In re M.A., 374 N.C. 865, 870, 844 S.E.2d 916 (2020)).
In adjudicating respondent-mother's termination of parental rights due to neglect, the trial court concluded "that the minor child has been previously adjudicated neglected, and there is a high likelihood that the child would be neglected if returned to [respondent-mother's] care and custody." Respondent-mother challenges the trial court's conclusion that there is a likelihood of repetition of neglect if the minor child was returned to her care and custody. She contends "that this determination is in error because the trial court failed to acknowledge the significant change in her circumstances since she broke up with [her boyfriend] in March 2022. These changes made the possibility that she would again neglect Penny much less likely." We disagree.
Respondent-mother challenges Findings of Fact 41, 51, 64, 66, 67, and 109 for lack of evidentiary support and Findings of Fact 113, 115, and 116 as unsupported ultimate findings.
A. Finding of Fact 41
Per Finding of Fact 41, the court observed "no evidence that [respondentmother] has successfully engaged in mental health treatment." Respondent-mother contends the finding contradicts other findings of fact and her testimony.
Unchallenged Findings of Fact 45 through 47 acknowledge respondent-mother's participation in mental health services during May 2022. The evidence presented during the termination hearing describes her inconsistent participation over the life of Penny's case. See In re A.M., 377 N.C. at 225, 856 S.E.2d at 806. A DSS social worker testified that "[t]here's been varying reports that [respondent-mother]'s been engaged or has had [mental health] services, but it hasn't been consistent enough to correct the concerns." Respondent-mother changed service providers "throughout the life of the case." Within "the last year she has had four different mental health service providers." Respondent-mother testified that between May 2021 and the termination hearing on 25 May 2022, the longest relationship she had with a mental health counselor was "about two months," and she did not recall the counselor's name. Because respondent-mother did not successfully engage in mental health treatment, we uphold Finding of Fact 41. See In re K.B., 378 N.C. at 607, 862 S.E.2d at 669-70.
B. Finding of Fact 51
In Finding of Fact 51, the trial court found that "[respondent-mother] testified that she was currently in domestic violence treatment, but subsequently acknowledged in her testimony that her participation . . . had been limited to placing a call to Eliza's Helping Hands, an agency where she wants to engage in domestic violence classes." Respondent-mother contends that the finding ignores testimony that she was currently participating in domestic violence services. The termination hearing transcript supports the trial court's recitation of respondent-mother's testimony, however, and we uphold the finding. See In re K.B., 378 N.C. at 607, 862 S.E.2d at 669-70.
C. Finding of Fact 64
Finding of Fact 64 states that respondent-mother "admitted that she did not visit regularly with [Penny] because she prioritized her abusive romantic relationship over [Penny]." Respondent-mother contends that the finding ignores a well-founded fear for her safety if she went against her boyfriend's wishes by visiting Penny. Notwithstanding respondent-mother's contention, no evidence speaks to her fear of her ex-boyfriend. She testified that she broke up with her boyfriend to reunite with her daughter: "I got tired of putting a man before my child." When asked why she did not visit Penny between August 2021 and April 2022, respondent-mother testified, "I mean, I was in a relationship then and it was just, like, I don't know. At the time when I was in a relationship with [my ex-boyfriend] it was just kind of, like, hard to get back and forth there." We uphold Finding of Fact 64. See In re K.B., 378 N.C. at 607, 862 S.E.2d at 669-70.
D. Finding of Fact 66
In Finding of Fact 66, the trial court found that respondent-mother "has her uncles . . . as well as her [maternal] grandmother . . . who can offer help and support to her. However, [respondent-mother] simultaneously acknowledged she does not like to ask for help, making it unlikely that [she] would utilize these identified family supports in the future." Respondent-mother challenges the contention that she is unlikely to utilize family support in the future. We note that in her testimony respondent-mother acknowledged she was "more willing to ask for help now than [she] might have been before." Also, respondent-mother's uncle testified that she had asked him to be a placement for Penny three weeks before trial and her other uncle had taken her to appointments at Monarch, Daymark, or Family Services. Because no clear, cogent, and convincing evidence supports a finding that respondent-mother is unlikely to utilize identified family support in the future, we strike the challenged portion of Finding of Fact 66. See In re A.N.H., 381 N.C. 30, 41-42, 871 S.E.2d 792, 802-03 (2022) (disregarding portions of findings not supported by the evidence).
E. Finding of Fact 67
Respondent-mother challenges Finding of Fact 67 for the observation that "[she] identified [her new] boyfriend as the reason that she has recently re-engaged in her case plan services, stating that he wants her to be engaged in services." Respondent-mother contests this finding as contrary to her testimony. When asked if she left the minor child in DSS custody for the past year-and-a-half, however, respondent-mother testified, "I mean, yeah. But it's - it's, like, I didn't want to do the services to get my daughter.... I'm not about to just keep doing services and I want to do services, but it's pointless just over a child." During her testimony, respondentmother also affirmed that following the breakup with her ex-boyfriend, she still "[did]n't want to participate in services, but the man that [she was then seeing] encourag[ed] [her] to do them[.]" We uphold Finding of Fact 67. See In re K.B., 378 N.C. at 607, 862 S.E.2d at 669-70.
F. Finding of Fact 109
Respondent-mother challenges Finding of Fact 109 for the observation that "[she] may love her children, but she is not willing to do much to care for them, to visit with them, to protect them, or to get herself and her life right so that she can be with them and them with her." Respondent-mother argues that the finding fails to acknowledge her participation in services since leaving her abusive ex-boyfriend. We first note the unchallenged observation also made under the finding, that "[respondent-mother] very concerningly testified, 'It's pointless to do services just over a child.' The [c]ourt concludes that this statement summed up her entire attitude, and effort, towards reunifying with [Penny]. It also demonstrated the lack of value that she places in her own children." Respondent-mother did not regularly visit Penny because she prioritized the relationship with her ex-boyfriend, as upheld in Finding of Fact 64. She engaged in services to reunite with Penny after the breakup with her ex-boyfriend only after encouragement from her new boyfriend, as upheld in Finding of Fact 67. We uphold that challenged component of Finding of Fact 109 as supported by these findings of fact. See In re K.B., 378 N.C. at 607, 862 S.E.2d at 669-70.
G. Findings of Fact 113, 115, and 116
Respondent-mother challenges Findings of Fact 113, 115, and 116 as ultimate findings of fact unsupported by other findings in the trial court's order:
113. Nothing of substance has changed in [respondentmother's] life since the Department removed [Penny] from her custody, other than that she gave birth to another child . . . who is now also in DSS custody and she now has a new boyfriend. ....
115. Based upon clear, cogent, and convincing evidence grounds to terminate [respondent-mother's] parental rights in and to the juvenile [Penny] exist pursuant to NCGS § 7B-1111(a)(1). [Penny] was previously adjudicated neglected. Domestic violence, instability, and mental health concerns of [respondent-mother] were the primary causal factors for that Adjudication. The same causal factors remain present today, with no significant changes in [respondent-mother's] circumstances since that date. There is a high likelihood that [Penny] would be neglected if returned to [respondent-mother's] care and custody. Additionally, [respondent-mother] has lost custody of her [older son] who has been placed in a permanent custody/Guardianship with a relative, as well as her younger son . . . who is currently in the Nonsecure Custody of Guilford County DSS. The loss of custody of all three of her children was relevant to the [c]ourt's determination that [Penny] is likely to experience repeated neglect.
116. By and through her actions in failing to satisfactorily engage in domestic violence treatment and mental health treatment, her continued prioritization of romantic relationships over the juvenile, and her failure to regularly visit with the juvenile, [respondent-mother] is directly and personally culpable for the neglect of [Penny].
Respondent-mother argues that the trial court failed to consider substantial evidence that her "circumstances had changed significantly for the better at the time of the termination hearing," namely the breakup with her abusive ex-boyfriend, effecting issues of domestic violence and housing instability. Also, she participated in domestic violence classes on 22 March and 24 May 2022, and she was receiving services for her mental health issues. Respondent-mother further contends that the loss of custody in her sons does not support a finding of neglect in Penny.
We first note the unchallenged Finding of Fact 108 that respondent-mother "ha[d] not completed the case plan services requested of her over a year ago and then ordered at Disposition, and . . . has not otherwise taken adequate steps to correct the conditions that caused the minor child [Penny] to be removed from her custody and Adjudicated." See In re M.S.E., 378 N.C. at 48, 859 S.E.2d at 205; see also In re A.M., 377 N.C. at 225, 856 S.E.2d at 806.
Though respondent-mother challenges the trial court's ultimate findings of fact as failing to consider significant changes to her circumstance following the breakup with her ex-boyfriend, the unchallenged and upheld evidentiary findings reflect consideration of her circumstances following said breakup. See In re G.C., 384 N.C. at 65, 884 S.E.2d at 661. The trial court found that at the time of the termination hearing, DSS could not confirm respondent-mother's engagement with a mental health provider, and the court found no evidence that she had successfully engaged in mental health treatment, though she had complied with mental health services during the month of the termination hearing. Following her domestic violence assessment on 30 March 2021, respondent-mother had attended only three of the twelve classes recommended at the time of the 25 May 2022 termination hearing. Additionally, she had been involved in domestic violence incidents throughout the history of the case and had repeatedly refused domestic violence services. At the time of the termination hearing, respondent-mother resided with her four siblings in her maternal grandmother's residence, which had proven to be unstable in the past. The trial court acknowledged respondent-mother's testimony that she did not visit the minor child for an eight-month period due to her relationship with her ex-boyfriend and found "[she] prioritized her abusive romantic relationship over [Penny]." The trial court found that the relationship ended in February 2022. The trial court also acknowledged respondent-mother's testimony that she chose to re-engage in service plans to reunite with her minor child only after her new boyfriend encouraged her to do so, consistent with her prioritization of a romantic relationship over reuniting with her minor child.
In further support of its determination that Penny would likely experience repeated neglect, the trial court found that respondent-mother's older son was placed in DSS custody after she was referred to In Home Services due to continuous mental health and stable housing concerns. At the time of Penny's adjudication as a neglected juvenile, respondent-mother had not maintained the case plan for the older son, and at the time of the termination hearing, he remained in DSS custody. The trial court found that the case plan ordered for respondent-mother in the case of her older son was "substantially similar" to the plan she was ordered to complete for the minor child Penny. Guilford DSS assumed custody of respondent-mother's younger son after receiving a CPS report which led to the enlistment of aid from law enforcement to force access to respondent-mother's residence to find the child and determine his wellbeing. The trial court found that her conduct raised questions of her compliance with mental health services. The younger son remained in Guilford DSS custody at the time of the termination hearing, respondent-mother had not participated in Guilford DSS's recommended services, and she had visited the child twice between 1 March and 25 May 2022.
Based on these findings of fact, the trial court was within its authority to determine that respondent-mother's history of refusing services or failing efforts to reunify with Penny, as well as with her two sons, outweighed her eleventh-hour efforts toward complying with her case plan. See, e.g., In re O.W.D.A., 375 N.C. 645, 653-54, 849 S.E.2d 824, 830-31 (2020) (holding the trial court was within its authority to weigh the evidence of the father's persistent failures to make improvements against the minimal progress made during his recent incarceration and determine there was a probability of repetition of neglect). We uphold the trial court's ultimate finding that "[t]here is a high likelihood that [Penny] would be neglected if returned to [respondent-mother's] care and custody" as supported by the evidentiary findings of fact. See In re Z.V.A., 373 N.C. at 212, 835 S.E.2d at 430; see also In re G.C., 384 N.C. at 65, 884 S.E.2d at 661. Respondent-mother does not challenge the trial court's finding of fact that the minor child Penny was previously adjudicated neglected and together with the likelihood of future neglect, the findings support the conclusion of a ground to terminate respondent-mother's parental rights based on neglect, pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). See In re D.L.W., 368 N.C. at 843, 788 S.E.2d at 167.
III. Conclusion
Because any single ground under N.C. Gen. Stat. § 7B-1111(a) is sufficient to support a termination of respondent-mother's parental rights, we do not address respondent-mother's arguments challenging grounds pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) or (6). See In re N.B., 377 N.C. at 353, 856 S.E.2d at 834. Furthermore, respondent-mother does not challenge the trial court's conclusion that termination of her parental rights is in Penny's best interests. See N.C. Gen. Stat. § 7B-1110(a) (2021). Accordingly, we affirm the trial court's 2 August 2022 order terminating respondent-mother's parental rights in the minor child.
AFFIRMED.
Judges TYSON and RIGGS concur.
Report per Rule 30(e).