Opinion
No. COA08-1351.
Filed May 5, 2009.
Guilford County No. 07 JT 241.
Appeal by respondent from order entered 9 July 2008 by Judge Lawrence C. McSwain in Guilford County District Court. Heard in the Court of Appeals 30 March 2009.
Mercedes O. Chut, for petitioner-appellee Guilford County Department of Social Services. Smith, James, Rowlett Cohen, L.L.P., by Margaret Rowlett, for appellee Guardian Ad Litem. Duncan B. McCormick, for respondent-appellant father.
The record contains ample evidence to support the trial court's findings of fact, which support the conclusion of law that grounds exist to terminate the parental rights of respondent.
I. Factual and Procedural Background
In December 2006, Forsyth County Department of Social Services received a report that a physician detected a mid-shaft spiral fracture to a minor child's left femur. The injury was characterized as non-accidental trauma. The child was a month and a half old at the time. Further investigation revealed a rib fracture and a fracture of the right tibia, both showing signs of healing. Both parents denied any knowledge of the injuries. The case was transferred to Guilford County in February 2007 after the child's mother moved the family to Guilford County. On 19 March 2007, Guilford County Department of Social Services (DSS) filed a juvenile petition alleging abuse, neglect, and dependency on the basis of the injuries to the child. Nonsecure custody was granted to DSS that day.
DSS entered into a case plan with the father (respondent) on 18 April 2007, which required him to: (1) maintain stable housing; (2) maintain stable employment; (3) advise DSS of any change in his housing or employment; (4) participate in a parenting program and follow all recommendations; (5) participate in a parenting psychological evaluation and follow all recommendations; (6) participate in an assessment for therapy services in order to determine the need for mental health services; (7) comply with a visitation plan; (8) maintain monthly contact with the social worker; (9) attend anger management classes; (10) participate in a domestic violence program; and (11) participate in the Together Again program and follow all recommendations.
The minor child was adjudicated abused and neglected at a 5 June 2007 hearing. The order was entered 25 June 2007 and amended 14 August 2007. The trial court ordered respondent to comply with his case plan. At a review hearing held on 7 September 2007, the trial court found that respondent had refused to enter into a visitation plan, citing conflicts with his work schedule. The court also noted that respondent had been incarcerated on charges relating to the alleged child abuse but had been released, that he was unemployed, had not visited with the child, nor had he complied with other aspects of his case plan. At the permanency planning review hearing held on 30 November 2007, the trial court changed the permanent plan for the child from reunification to adoption. The court found that respondent's whereabouts were unknown until 13 November 2007 when he met with the social worker to establish another case plan. Respondent did not enter a new case plan on advice from his attorney in his criminal matter. Nor had he made any progress on elements of his case plan from 18 April 2007 relating to evaluations, parenting classes, or anger management classes. The court's order was entered on 18 December 2007 and amended on 18 January 2008.
On 30 January 2008, DSS filed a petition to terminate parental rights, alleging abuse and neglect of the juvenile pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), and willful failure to pay a reasonable portion of the cost of care of the juvenile pursuant to N.C. Gen. Stat. § 7B-1111(a)(3). The matter came on for hearing on 8 April 2008 and continued on 15 April and 29 April 2008.
At the hearing, DSS social worker Latarsha Martin (Martin) testified regarding respondent's limited progress on his case plan. She testified that respondent had not maintained stable housing or employment, he did not keep DSS informed of where he was living or whether he was working, he refused to enter into a visitation plan, he had only seen the child once since the juvenile petition was filed, and he did not maintain monthly contact with DSS. Martin further testified that respondent had not participated in the Star Parenting Classes due to his inability to pay for them, that no referral was made for the parenting and psychological evaluation due to the fact that Martin did not know where respondent was living, respondent had not engaged in therapy services, and that no referral was made to the Together Again program due to respondent's noncompliance with other aspects of his case plan. Respondent communicated to Martin on more than one occasion that he was unwilling to participate in the case plan on the advice of his criminal defense attorney.
Respondent testified regarding his attempts to comply with his case plan. He stated that when he initially signed the case plan, he told the social worker that the plan's requirements would be a financial burden on him. He attempted to enroll in a domestic violence program, but was unable to do so because DSS had not made a referral at the time of his inquiry. By the termination hearing, respondent had started parenting classes; was attending meetings of the Chessman Club, a jobs networking organization; had signed a voluntary support agreement; had made one payment out of his unemployment check; and had started One Step Further, a parenting program. Respondent admitted he had not seen the minor child since May 2007, that he still had no income from his start-up businesses, and that he had not done much work on his case plan in 2007 due to advice received from his criminal defense attorney.
After hearing all the evidence, the trial court determined that grounds existed to terminate respondent's parental rights based on abuse and neglect. The court then determined termination to be in the best interests of the minor child and ordered the termination of respondent's parental rights. The trial court entered its order on 9 July 2008.
Respondent appeals.
II. Grounds to Terminate
In his first and second arguments, respondent contends the trial court erred in concluding that grounds existed to terminate based on abuse and neglect where the findings of fact and the conclusions of law were not supported by clear, cogent, and convincing evidence, and where the findings of fact did not support the conclusions of law. With regard to both grounds for termination, respondent specifically argues the trial court failed to make the necessary findings of fact regarding the probability of repetition of either abuse or neglect as required by statute. We disagree.
"`The standard of review in termination of parental rights cases is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the 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)), disc. review denied, 358 N.C. 543, 599 S.E.2d 42 (2004). N.C. Gen. Stat. § 7B-1111 states:
(a) The court may terminate the parental rights upon a finding of one or more of the following:
(1) The parent has abused or neglected the juvenile.
The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-101. N.C. Gen. Stat. § 7B-1111(a)(1) (2007). The statute clearly states that a finding of either abuse or neglect is adequate grounds for a termination of parental rights. Therefore, we focus solely on the trial court's finding of neglect.
To prove neglect in a termination case, there must be clear and convincing evidence that (1) the juvenile is neglected within the meaning of N.C. Gen. Stat. § 7B-101(15), "and (2) the juvenile has sustained `some physical, mental, or emotional impairment . . . or [there is] a substantial risk of such impairment as a consequence'" of the neglect. In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)).
A prior order adjudicating neglect is admissible evidence to show past neglect. In re Ballard, 311 N.C. 708, 713-15, 319 S.E.2d 227, 231-32 (1984). However, termination of parental rights may not be determined solely on a finding of past neglect. Id. at 714-15, 319 S.E.2d at 231-32. A trial court must find either that neglect existed at the time of the termination hearing or that there was a reasonable likelihood of repetition of neglect if the child was returned to the parents. Id. at 715-16, 319 S.E.2d at 232-33; see also Reyes, 136 N.C. App. at 815, 526 S.E.2d at 501. This is especially true when a respondent has not had custody of the child for quite some time. Ballard, 311 N.C. at 713-15, 319 S.E.2d at 231-32. Similar principles apply to a finding of abuse. In re Alleghany County v. Reber, 75 N.C. App. 467, 469-70, 331S.E.2d 256, 257-58 (1985), aff'd per curiam, 315 N.C. 382, 337 S.E.2d 851 (1986).
In this case, the trial court ordered termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), on the grounds of neglect and abuse. The trial court's order contains sufficient findings of fact regarding the probability that neglect will recur if the juvenile is returned to respondent's care. The trial court found as fact:
32. The father has not complied with the objectives of his case plan.
. . .
37. The father has not completed taking the Star Parenting classes or any other type of comparable parenting classes.
. . .
42. The father refused to enter into a visitation plan, because he did not want to be locked into a visitation [plan] if he secured employment.
43. The father has only visited the juvenile one time since the juvenile has been in DSS custody.
44. The father did not complete the anger management classes or the Domestic Violence Intervention Program.
. . .
46. As of March 3, 2008, the father still refused to comply with the objectives of his case plan on the advice of his legal counsel.
47. The mother and father have failed to alleviate the conditions that brought the juvenile into DSS custody, and neither parentis in a position to have the juvenile returned to their custody as of the date of this hearing.
. . .
50. The bond between the juvenile and her father is very weak, because he has only visited the juvenile one time since she has been in DSS custody.
These findings are sufficient to establish that a probability of repetition of neglect is likely should the juvenile be returned to respondent. While the trial court did not specifically state in its findings of fact that abuse or neglect will likely recur if the juvenile is returned to respondent's care, it is clear from finding of fact number 47 that the trial court found repetition of neglect likely. By stating that neither parent was in a position to have juvenile returned to their custody as of the date of the termination hearing, the trial court satisfied the requirements of Ballard by finding that neglect existed at the time of the hearing. Therefore, we conclude that the findings of fact support the conclusion of law that grounds exist to terminate the parental rights of respondent.
III. Contested Findings of Fact
In his third argument, defendant contends that several of the trial court's findings of fact are not supported by clear and convincing evidence. We disagree.
"In a non-jury neglect adjudication, the trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings." In re Helms, 127 N.C. App. 505, 511, 491S.E.2d. 672, 676 (1997) (citations omitted). The findings of fact respondent challenges are numbers 32, 33, and 47.
Finding of fact number 32 states: "The father has not complied with the objectives of his case plan." Respondent argues that at the time of the hearing, he was participating in the Star Parenting classes, had completed a parent psychological evaluation, had signed a voluntary support agreement, had begun paying child support, and was looking for a job. We note that respondent did not challenge finding of fact number 46 which states, "As of March 3, 2008, the father still refused to comply with the objectives of his case plan on the advice of his legal counsel." Apparently, respondent is only challenging the period of time between 3 March and the hearing beginning on 8 April 2008.
Martin testified respondent had not paid any money to DSS. Respondent testified he had not seen the juvenile since May 2007, he still had no income from his start-up businesses, and admitted he had not done much work on his case plan in 2007 due to advice received from his criminal defense attorney. We hold that there is ample evidence in the record to support this finding.
Finding of fact number 33 states:
When the father signed the case plan to reunify with the juvenile on April 18, 2007, he listed his address as 1300 Bilbro Street, Greensboro, North Carolina; however, the DSS Social Worker, could not locate him at that address after June 5, 2007, and from June 5, 2007 until October 25, 2007, DSS did not know where the father resided, and he did not inform DSS of his whereabouts prior to October 25, 2007.
Respondent argues that DSS knew where he resided between 5 June 2007 and 25 October 2007. Respondent specifically argues DSS knew he was arrested in August 2007 and spent a month in jail, and DSS sent him a letter on 11 October 2007. However, Martin testified she did not discover respondent was in jail until September 2007 when the juvenile's mother called her. Martin further testified that respondent never told her about a change in address, and she only discovered his new address on 25 October when respondent told her of the change at the permanency planning meeting. We hold that there is ample evidence in the record to support this finding.
As to finding of fact 47, respondent argues that this finding is a conclusion of law and is not supported by clear and convincing evidence. Respondent has shown an inability to maintain secure employment or a stable living environment. Martin testified that respondent has never shown proof of income to DSS nor has he paid any money to DSS for the juvenile's needs. Respondent has also only visited with the juvenile one time and has not maintained contact with DSS. We hold that there is ample evidence in the record to support this finding.
Respondent has failed to argue his remaining assignments of error in his brief, and they are thus deemed abandoned pursuant to Rule 28(b)(6) of the Rules of Appellate Procedure. N.C.R. App. P. 28(b)(6).
AFFIRMED.
Judges ELMORE and GEER concur.
Report per Rule 30(e).