Opinion
No. COA10-1051
Filed 15 February 2011 This case not for publication
Appeal by Respondent-mother from order entered 23 March 2010 by Judge Page Vernon in Chatham County District Court. Heard in the Court of Appeals 2 February 2011.
Northen Blue, L.L.P., by Carol J. Holcomb and Samantha H. Cabe, for Chatham County Department of Social Services. Sydney Batch for Respondent-mother. Pamela Newell, N.C. Administrative Office of the Courts, for Guardian ad Litem.
Chatham County No. 08 JT 78.
Factual and Procedural Background
The Chatham County Department of Social Services ("DSS") became involved with Respondent-mother and her minor child, J.L.C., Jr. ("James"), in February 2008, when it substantiated an allegation of neglect based on exposure to domestic violence in the home. Subsequent investigation by DSS revealed that Respondent-mother admitted to having "blackouts" while caring for James, which Respondent-mother claimed were caused by stress and anger. Respondent-mother also admitted that she was a recovering alcoholic and that both she and her husband placed James at risk of harm by committing acts of domestic violence in James' presence.
"James" is a pseudonym to protect the child's privacy.
DSS received a second referral regarding concerns about bruising on James' arms on 17 June 2008. Respondent-mother admitted that the bruises were made when she "pinned" James down while changing James' diaper. Respondent-mother was charged with misdemeanor child abuse and subsequently entered into a safety plan with DSS, wherein she agreed she would not be alone with James. However, Respondent-mother violated the safety plan on 1 July 2008, and DSS filed a juvenile petition on 3 July 2008, alleging that James was abused and neglected. DSS also obtained nonsecure custody of James by order entered 3 July 2008.
After a hearing on 28 August 2008, the trial court entered an adjudication order finding that James was dependent and neglected. The court continued custody of James with DSS and ordered that James remain placed in a foster home. The trial court further ordered supervised visitation only between James and Respondent-mother and adopted the case plan for reunification as recommended by DSS. Specifically, the trial court ordered Respondent-mother to comply with her counseling and therapy recommendations, attend Alcoholics Anonymous ("AA") meetings, and obtain employment.
On 13 November 2008, the trial court entered a custody review order. The court found that Respondent-mother had separated from her husband, was living in a home with no heat, and was behind on her rent, electric, phone, and gas bills. Respondent-mother had also been diagnosed with borderline personality disorder. The court continued custody of James with DSS and ordered Respondent-mother to: (1) submit to random drug screens, (2) attend AA meetings a minimum of twice a week and submit proof of her attendance to DSS, (3) attend dialectical behavior therapy counseling, (4) work on intensive in-home parenting skills, and (5) obtain employment.
The trial court held a permanency planning hearing on 14 May 2009 and filed its order from that hearing on 23 June 2009. The court set the permanent plan for James as reunification with the father, but continued custody with DSS. The court found that James could not be returned to Respondent-mother's home because she was homeless, pregnant, had ongoing mental health issues, and needed additional time for the successful treatment of her substance abuse issues. The court ordered Respondent-mother's visitation with James to be supervised, but authorized unsupervised visitation at the discretion of her therapeutic treatment team.
On 27 August 2009, the trial court entered a subsequent permanency planning order, changing the permanent plan for James to adoption and ordering DSS to file motions to terminate parental rights. The court found that Respondent-mother had not maintained stable housing or employment, was currently residing with her mother and stepfather in a living situation that was unsuitable for James, and had lost her driver's license. The court further found that Respondent-mother had attended parenting classes, but was not able to "internalize and apply" the information she learned to real-life situations. Respondent-mother had also not made substantial progress in understanding James' needs or how to meet those needs, or in developing an ability to change her behavior to meet James' needs. Additionally, the court found that Respondent-mother still suffered from blackouts and dizzy spells, which rendered her incapable and unable to provide care for any child.
DSS filed a motion to terminate Respondent-mother's parental rights to James on 20 October 2009. DSS alleged grounds existed to terminate Respondent-mother's parental rights in that she: (1) neglected James, (2) willfully left James in a placement outside the home for more than 12 months without showing to the court that reasonable progress had been made toward correcting the conditions which led to the removal of James, and (3) was incapable of providing for the proper care and supervision of James such that James was a dependent juvenile. Respondent-mother filed her response to the motion on 28 December 2009, and the matter was heard by the trial court on 11 and 23 March 2010. By order filed 18 June 2010, the trial court terminated Respondent-mother's parental rights to James. The court found the existence of all three grounds alleged by DSS to terminate Respondent-mother's parental rights. Respondent-mother filed notice of appeal on 8 July 2010.
James' father has relinquished his parental rights to James and is not a party to this appeal.
Discussion
It is well established that termination of parental rights proceedings involve a two-stage process: (1) the adjudication stage, where the petitioner is required to prove the existence of grounds for termination by clear, cogent, and convincing evidence, and (2) the disposition stage, where the court's decision whether to terminate parental rights is discretionary. In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38, disc. review denied, 318 N.C. 283, 347 S.E.2d 470 (1986). On appeal, Respondent-mother does not challenge the trial court's decision at disposition that it is in James' best interest for Respondent-mother's parental rights to be terminated. Rather, Respondent-mother only challenges the court's determination in the adjudication stage that grounds exist to terminate her parental rights. Our standard of review for the trial court's determination that grounds exist for termination is whether the trial court's findings of fact are based on clear, cogent, and convincing evidence and whether the findings support the conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed, disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
In this case, the trial court determined that Respondent-mother's parental rights should be terminated based on the following statutory grounds: (1) "[James] has been willfully left in foster care for more than 12 months, without [Respondent-mother] showing to the satisfaction of the Court that reasonable progress has been made within 12 months in correcting those conditions which led to the removal of [James]" pursuant to N.C. Gen. Stat. § 7B-1111(a)(2); (2) "[James] is a dependent juvenile within the meaning of G.S. 7B-101[;]" and (3) "[James] is a neglected juvenile within the meaning and scope of []G.S. § 7B-101[.]" Where, as here, a trial court concludes that parental rights should be terminated pursuant to several of the statutory grounds set out in section 7B-1111, "the order of termination will be affirmed if the court's conclusion with respect to any one of the statutory grounds is supported by valid findings of fact." In re D.B., 186 N.C. App. 556, 561, 652 S.E.2d 56, 60 (2007), aff'd per curiam, 362 N.C. 345, 661 S.E.2d 734 (2008). Respondent-mother argues that the trial court erred by finding the existence of each of these statutory grounds for termination. However, because we conclude that the court appropriately determined that James is a neglected juvenile, we only address Respondent-mother's arguments with respect to that statutory ground for termination.
Section 7B-1111(a)(1) provides that a court may terminate parental rights upon a finding that a parent has neglected a juvenile. N.C. Gen. Stat. § 7B-1111(a)(1) (2009). The juvenile shall be deemed to be neglected if the court finds the juvenile to be a neglected juvenile within the meaning of section 7B-101. Id. Section 7B-101(15) defines a neglected juvenile as follows:
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) (2009).
In its termination order, the trial court determined that James "is a neglected juvenile within the meaning and scope of [section] 7B-101" in that (1) "he is a juvenile who does not receive proper care, supervision, or discipline from [Respondent-mother]" and (2) "[he] lives in an environment injurious to his welfare."
"In deciding whether a child is neglected for purposes of terminating parental rights, the dispositive question is the fitness of the parent to care for the child `at the time of the termination proceeding.'" In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (quoting In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984)).
Where [] a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect. This is because requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible.
In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (citations omitted). "[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." Ballard, 311 N.C. at 713-14, 319 S.E.2d at 231. A trial court may terminate parental rights based upon a prior adjudication of neglect if "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). "The trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect[,]" Ballard, 311 N.C. at 715, 319 S.E.2d at 232, and "[t]ermination may not[] be based solely on past conditions that no longer exist." L.O.K., 174 N.C. App. at 435, 621 S.E.2d at 242.
In this case, the trial court found in the termination order, and Respondent-mother does not dispute, that James was removed from Respondent-mother's home in July 2008 and was adjudicated a neglected child in August 2008. The trial court further found in the termination order that Respondent-mother's "neglect of [James] will repeat and/or continue if [he] were returned to the care and [custody of Respondent-mother]."
In support of its finding that repetition of neglect is probable, the trial court found the following facts, which are undisputed by Respondent-mother on appeal and are, therefore, binding on this Court. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) ("Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal."); see also In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988) (noting that findings of fact supported by competent evidence are binding on appeal, "even though there may be evidence to the contrary").
12. Based on [Dr. Kuzyszyn-Jones' evaluation], [Respondent-mother] was diagnosed as suffering from Borderline Personality Disorder.
Dr. Katrina Kuzyszyn-Jones ("Dr. Kuzyszyn-Jones") performed a psychological evaluation of Respondent-mother in August 2008. Dr. Kuzyszyn-Jones also testified at the termination hearing.
13. [Respondent-mother] exhibits a pattern of behavioral and emotional reactions, unstable and intense social relationships, mood swings, superficial interactions, difficulty controlling anger, suspicious and paranoid behaviors, and a history of trauma, substance abuse and depression.
. . . .
15. [Respondent-mother's] Borderline Personality Disorder has negatively affected her ability to parent.
16. During the visit between [Respondent-mother] and [James], observed by Dr. Kuzyszyn-Jones, [Respondent-mother] did not appear to be attached to [James] as there was minimal interaction between them. [Respondent-mother] did not bring any toys or anything with which to engage or occupy [James]. [James] reached out for the foster mother and the Guardian ad Litem who were also in the room for comfort, but not to [Respondent-mother].
17. [Respondent-mother's] psychological testing indicated that she has unreasonable expectations of [James]. For example, [Respondent-mother] believes that her infant son's behavior was his attempt to manipulate her.
18. [Respondent-mother] does not understand how to deal with [James'] development and cannot meet his needs without such understanding.
. . . .
30. During the course of [Evette] Horton's observations of [Respondent-mother] and [James], [Ms. Horton] became concerned about the quality of the attachment between [Respondent-mother] and [James].
Evette Horton ("Ms. Horton") taught parenting classes attended by Respondent-mother between August 2008 and May 2009. Ms. Horton testified at the termination hearing.
31. Ms. Horton saw signs of an "insecure" attachment between [James] and his mother. On one occasion, Ms. Horton witnessed [James] calling the Social Worker "mom." On other occasions, she noted [James'] willingness to be picked up by complete strangers.
. . . .
34. From the beginning of [DSS'] work with [Respondent-mother], [she] reported recurring "blackouts" during which time she did not know what she was doing. She had these "blackouts" while caring for [James].
. . . .
55. Medical records indicate that [Respondent-mother] continues to have dizzy spells each day and episodes of blackouts from one to two times each day, which last one to two minutes each. The medical records seem to indicate that the reason for the blackouts is unknown. Various tests that have been completed on [Respondent-mother] do not show a definite cause.
56. The medical records indicate that [Respondent-mother] suffers from bi-polar disorder. [Respondent-mother] does not currently take medication.
. . . .
62. [James] has been impaired and/or is at risk of impairment by [Respondent-mother's] lack of emotional attachment to him, her lack of understanding of his development and his needs, and her unwillingness or inability to alter her ideas and behaviors regarding the care and discipline of the juvenile.
63. Based upon [Respondent-mother's] inconsistent therapy and minimal progress in addressing her mental health needs and based upon the lack of a bond between [Respondent-mother] and [James], this court finds that the neglect/impairment experienced by [James] while in [Respondent-mother's] care is likely to repeat if he is returned to her custody.
The trial court also found that, in August 2008, Dr. Kuzyszyn-Jones completed a parenting evaluation of Respondent-mother that showed (1) that Respondent-mother "demonstrated a limited interest in interacting with [James]" and "only tried to engage him in play a few times; she did not try to talk to him or get him to talk to her; and she did not engage him in any type of instruction[;]" (2) that despite receiving feedback from DSS, Respondent-mother is "unable to translate that new information into changes in her parenting style and behaviors[;]" (3) that despite having completed parenting training, "Respondent-mother does not understand child development — even on a basic level[;]" and (4) that Respondent-mother "does not have a good understanding of [James'] needs or preferences."
Rather than disputing whether the foregoing findings of fact are supported by clear, cogent, and convincing evidence, Respondent-mother argues there was evidence from which findings could have been made that Respondent-mother had made significant progress in addressing the issues that led to removal of James and that the trial court erroneously failed to consider the more recent evidence. We disagree. The following findings of fact indicate that the trial court appropriately considered evidence of Respondent-mother's progress:
11. [Respondent-mother] has not remedied the conditions that led to the removal of [James] during the time [he] has been in DSS custody, and it is likely that the neglect of [James] will repeat and/or continue if [he] were returned to the care and [custody of Respondent-mother].
. . . .
26. While [Respondent-mother] did make some progress [with in-home parenting sessions], she did not make the progress needed to be able to safely parent [James].
27. At the time the parenting instruction ended, [Respondent-mother] still needed to be reminded about how to redirect [James'] behavior.
. . . .
29. Notwithstanding the progress [Respondent-mother] made [with supervised visits], she continued to show a significant amount of instability and an inability to "keep up" with [James]. In addition, [Respondent-mother] became pregnant and was tired from her pregnancy, making it even more difficult to appropriately parent [James].
. . . .
53. Throughout the history of this case, [Respondent-mother] has had visitation with [James], mostly supervised at the Visitation Center. Some notes from the Visitation Center reflect no concerns, while others list concerns such as [Respondent-mother] not being able to control [James], not being able to take care of her new baby and [James] at the same time, or being late for or not attending visitation.
. . . .
58. [Respondent-mother] has seen a therapist and has attended DBT ([Dialectical] Behavior Therapy). Letters produced by [Respondent-mother], without objection, tend to show that her attendance has been irregular. While both letters speak favorably of [Respondent-mother], neither letter indicates a measurable change in [Respondent-mother's] concerning behavior.
. . . .
63. Based on [Respondent-mother's] inconsistent therapy and minimal progress in addressing her mental health needs and based upon the lack of a bond between [Respondent-mother] and [James], this court finds that the neglect/impairment experienced by [James] while in [Respondent-mother's] care is likely to repeat if he is returned to her custody.
The foregoing findings by the trial court, which are largely undisputed by Respondent-mother — and, in any case, which are supported by clear, cogent, and convincing evidence through the testimony of Dr. Kuzyszyn-Jones, social workers Tammy Yarborough and Wendy Tarlton, and Ms. Horton, who all testified to continuing concerns over Respondent-mother's suitability as a parent for James — indicate that the court carefully considered Respondent-mother's progress before finding, and ultimately concluding, that James is a neglected juvenile.
Furthermore, to the extent Respondent-mother appears to argue that the trial court erred by relying on Dr. Kuzyszyn-Jones' testimony rather than Ms. Horton's testimony in that Ms. Horton's testimony was based on more recent observation and, therefore, should have been more persuasive, we note that such credibility determinations are solely within the province of the trial court. See In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (noting that in a juvenile proceeding, the trial judge is both judge and juror, and "it is that judge's duty to weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom").
Based on the foregoing, we hold that the trial court's finding that James is a neglected juvenile is supported by clear, cogent, and convincing evidence and that this finding supports the trial court's conclusion that grounds exist to terminate Respondent-mother's parental rights.
Because we find a ground for termination of parental rights was properly established pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), we do not address Respondent-mother's further arguments regarding the trial court's conclusion that grounds to terminate her parental rights also existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) and (a)(6). The order of the trial court terminating Respondent-mother's parental rights to James is affirmed.
AFFIRMED.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).