Opinion
No. COA15–712.
01-19-2016
In the Matter of: Z.A.A.
Dean W. Hollandsworth for petitioner-appellee New Hanover County Department of Social Services. Edward Eldred for respondent-appellant mother. K & L Gates LLP, by Erica R. Messimer, for guardian ad litem.
Dean W. Hollandsworth for petitioner-appellee New Hanover County Department of Social Services.
Edward Eldred for respondent-appellant mother.
K & L Gates LLP, by Erica R. Messimer, for guardian ad litem.
Opinion
Appeal by respondent-mother from order entered 6 April 2015 by Judge J.H. Corpening, II in New Hanover County District Court. Heard in the Court of Appeals 28 December 2015.
INMAN, Judge.
Respondent-mother appeals from the trial court's order terminating her parental rights to Z.A.A. (“Zaire”). After careful review, we affirm.
Pseudonyms are used to protect the identity of the juvenile and for ease of reading.
On 24 October 2012, the New Hanover County Department of Social Services (“DSS”) took Zaire into nonsecure custody and filed a juvenile petition alleging that he was neglected and dependent. The petition was based on the following allegations:
The mother is alleged to be either low functioning mentally and/or have mental health issues and the father is disabled and has a history of seizures associated with head trauma, is alleged to have a violent history and there are concerns as to his parenting skills, all of which combine to endanger the health and safety of the child, requiring foster care placement to insure his well-being.
In an order entered on or about 9 January 2013, the trial court adjudicated Zaire dependent, based on the consent of the parties. DSS therefore voluntarily dismissed the neglect allegations. In the dispositional portion of the order, the trial court maintained custody with DSS and ordered the respondent-parents to comply with various directives.
On 5 September 2014, DSS filed a petition to terminate respondent-mother's parental rights to Zaire, alleging dependency pursuant to N.C. Gen.Stat. § 7B–1111(a)(6) (2013) as the sole ground for termination. The petition also sought to terminate the parental rights of Zaire's father. DSS, however, voluntarily dismissed the petition as to Zaire's father after he relinquished his parental rights to Zaire on 14 November 2014.
The trial court conducted a termination of parental rights hearing on 12 January 2015. DSS and respondent-mother subsequently filed motions to reopen the case for additional evidence pursuant to N.C.R. Civ. P. 59, as the trial court had not yet entered an order. The trial court allowed both motions and conducted a second hearing on 23 February 2015. The trial court entered an order on 6 April 2015 terminating respondent-mother's parental rights after finding the existence of dependency and after concluding that termination was in Zaire's best interest. Respondent-mother appeals.
Respondent-mother challenges the trial court's conclusion that termination of her parental rights was justified based upon the ground of dependency. We review the trial court's order to determine “whether the trial court's findings of fact were based on clear, cogent, and convincing evidence, and whether those findings of fact support a conclusion that parental termination should occur [ .]” In re Oghenekevebe, 123 N.C.App. 434, 435–36, 473 S.E.2d 393, 395 (1996) (citation omitted). Respondent-mother has failed to challenge any of the findings of fact as lacking in evidentiary support. Therefore, they are presumed to be supported by competent evidence and are binding on appeal. See In re M.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009).
In termination of parental rights cases, our juvenile code defines dependency as follows:
[T]he parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B–101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.
N.C. Gen.Stat. § 7B–1111(a)(6). In determining whether a juvenile is dependent, the trial court is required to “address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.” In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005).
Respondent-mother does not challenge the second prong of the dependency ground; thus, it is undisputed that she lacked an alternative child care arrangement for Zaire. Respondent-mother argues that DSS failed to present clear and convincing evidence that she was incapable of parenting due to mental retardation. Respondent-mother concedes that psychologist Len Lecci diagnosed her as mildly mentally retarded, with a full scale IQ of 65. She contends, however, that the sole evidence of her ability to parent rested on the testimony of Dr. Lecci and that he did not adequately connect his diagnosis to her ability to parent. We are not persuaded.
The following findings of fact address the first prong of this ground for termination:
6. Dave Kuehner, social worker with [DSS] testified as to the allegations in the termination of parental rights petition. The Court finds as fact that Mr. Kuehner has worked with the family for over two years and provided many services to the family and they still present with the same issues and behaviors as alleged in the Juvenile Petition and there are not any other services to provide to the Respondent–Parents to assist them with reunification. Both parents have completed psychological evaluations by Dr. Len Lecci and are both low functioning and do not have the cognitive ability to parent their child. The parents had several months of unsupervised visitation and did not progress to trial home placement due to safety concerns and care issues. Methodist In–Home Services noted major safety concerns and that the home was not safe for overnight visitation. Personal assistants worked with the Respondent–Mother but [she] did not benefit from the services. The parents participated in sixteen weeks of individual parent training and still did not gain the tools needed to parent their child. The parents stated that the infant was crawling at three weeks old and was sleeping through the night, which is unlikely. The Juvenile was identified as failure to thrive as an infant prior to the Department taking custody.... The front yard of the home had small objects in the front yard and objects left in the Juvenile's room and living areas that were a hazard to the Juvenile through choking or other injury, although [Zaire] has never actually been harmed during his visits with his parents. Photographs of the parents' home showing the hazards and clutter present in the environment that the child was subjected to while visiting with his parents were introduced into evidence and considered by the Court. The parents were instructed to clean up the hazardous objects and attempted to do so, but their efforts were inadequate and did not render the home safe. The Respondent–Mother has been given instruction and services by the social worker, the guardian ad litem, the foster parent, the mother's personal assistants, the CC4C worker, the church parenting class, the child's pediatrician and nutritionist, WIC staff and an in-home specialist through Methodist Home for Children and is still unable to demonstrate the knowledge to care for a toddler and maintain a safe and appropriate environment for a child....
7. Dr. Len Lecci testified and the Court accepted him as an expert in the field of parental assessments and clinical psychology. Dr. Lecci testified and the Court finds as fact that he performed psychological evaluation on the Respondent–Mother on March 8, 2013 and ... [it was] accepted into evidence by the Court.... Dr. Lecci testified that the mother was twenty years old at the time of her evaluation. The mother stated that she fed the baby at four weeks only every six and a half hours which is an unusually long time between feeding and the Juvenile was diagnosed with failure to thrive. The mother's full scale IQ is 65 which is extremely low and below 99% of the population. She stated in her interview that she had failed the written portion of the driver's license examination twice. Her low cognitive functioning indicates that there will be limitations in her ability to parent.
8. Julie Stone, Methodist Home for Children in-home specialist testified and the Court finds as fact that the Respondent–Parents were referred in April of 2014 for services and she worked with them for approximately 3 months. When the referral was received Ms. Stone discussed the need for intervention with the social worker and the parents to determine the skills that are needed to safely return the Juvenile to the family home. After working with the mother and father for over nine weeks on safety issues in and around the home, the parents never progressed to working on parenting issues. The cognitive limitations of the parents were the biggest barrier to their ability to provide a safe living environment for their 2 year old son and the family home continues to be an unsafe environment. The home had cords hanging from the blinds; the crib present in the home had been recalled; there was dirty food throughout the home; no child proof locks; power tools across from the child's room and the toilet had no safety devices besides bungee cords. There is no level of service that can in fact change a person's IQ or working memory and it is unrealistic to believe that the Respondent–Parents are capable of being able to gain the skills necessary to safely parent their child. The duration of unsupervised visitation could not be extended to overnight or trial home placement due to the significant danger posed to a child of [Zaire's] age by the unsafe environment maintained by the parents and lack of improvement to that environment and was returned to supervised visitation in July of 2014.
....
15. The Court found the Juvenile dependent due to the cognitive deficits of the Respondent–Mother as her low cognitive skills are in the Mild Mental Retardation range with her full scale IQ of 65 and she cannot care for the Juvenile and maintain a safe environment for him and there is a reasonable probability that such incapability will continue for the foreseeable future and further she lacks an appropriate alternative child care arrangement.
The foregoing findings of fact demonstrate that DSS presented clear and convincing evidence that respondent-mother was incapable of providing proper care and supervision due to her cognitive limitations. The trial court specifically found that “[t]he cognitive limitations of the parents were the biggest barrier to their ability to provide a safe living environment for their 2 year old son and the family home continues to be an unsafe environment” and that “[t]here is no level of service that can in fact change a person's IQ ... and it is unrealistic to believe that the Respondent–Parents are capable of being able to gain the skills necessary to safely parent their child.”
While Dr. Lecci opined that mild mental retardation does not categorically disqualify a person from parenting, the findings here do in fact link respondent-mother's inability to parent to her cognitive limitations and are supported by clear and convincing evidence. Dr. Lecci testified that respondent-mother's ability to acquire the skills necessary to parent would be limited due to her cognitive limitations and that he was not concerned with respondent-mother being malicious towards Zaire, but he was concerned that her cognitive limitations could lead to neglect. Furthermore, the findings demonstrate that termination of parental rights was not based solely on Dr. Lecci's testimony. Social worker Dave Kuehner assisted the family for twenty months, from October 2012 to July 2014, and the parents made virtually no progress. Mr. Kuehner testified that the biggest factor preventing reunification was the “cognitive ability of the parents to safely foresee any type of safety concerns or just the basic understanding to meet the needs and the welfare of the child.” DSS also employed Julie Stone, a licensed clinical social worker from the Methodist Home for Children. Ms. Stone worked with the parents for nine weeks, and she too saw no progress. Based on her observations together with her review of Dr. Lecci's evaluation, Ms. Stone was of the opinion that “there was just no way to work with [the parent's cognitive limitations] to make it be what it wasn't, which is they could not provide that child with a safe living environment.”
We conclude that the trial court's findings of fact are based on clear and convincing evidence presented by DSS and are sufficient to establish that respondent-mother is incapable of providing for the proper care and supervision of Zaire. Accordingly, we hold that the trial court was justified in terminating respondent-mother's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(6).
AFFIRMED.
Judges McCULLOUGH and ZACHARY concur.
Report per Rule 30(e).