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In Matter of L.A.H

North Carolina Court of Appeals
Mar 16, 2010
692 S.E.2d 194 (N.C. Ct. App. 2010)

Opinion

No. COA09-1258.

Filed March 16, 2010.

Lincoln County Nos. 06JT143-45.

Appeal by respondent-mother from order entered 29 June 2009 by Judge Larry J. Wilson in District Court, Lincoln County. Heard in the Court of Appeals 15 February 2010.


Carolyn Crouch for petitioner-appellee Lincoln County Department of Social Services. Carol Ann Bauer for respondent-appellant mother. Pamela Newell Williams for guardian ad litem.


Respondent-mother appeals from the District Court's order terminating her parental rights to her five-and-a-half-year-old son, L.A.H. ("Lance"), and four-year-old twins J.L.H. ("Jasper") and J.R.H. ("Jane"). After careful review, we affirm.

The father's parental rights to the children were also terminated, but he does not appeal.

Pseudonyms are used to protect the identity of the juveniles and for ease of reading.

The three children in this case have been involved with social services agencies for most of their lives. Lance was born in Gaston County, North Carolina. After his birth, Respondent and the children's father moved to Atlanta, Georgia, where the twins were born. The family lived in Atlanta for approximately two-and-a-half years, and during this time social services became involved with the family. As a result, Lance was taken into the custody of social services and sent to live with his maternal grandparents in Lincoln County, North Carolina. At that time, the father had a drug problem.

Lance was returned to the custody of his parents and the family moved to upstate New York, where the father's extended family lives. The father was physically abusive to Respondent while in the presence of Lance, and Lance became aggressive towards his father. For this reason, Respondent left New York and returned to Lincoln County, where her parents lived. After living with her parents for a few days, Respondent moved into a women's shelter with her three children, where they stayed for approximately two months.

Respondent took out a domestic violence protective order ("DVPO") against the father, in the event that he followed her to North Carolina. The father did return to North Carolina to attend a court appearance on the DVPO. Upon his arrival, Respondent resumed her relationship with the father and, as a result, was asked to leave the shelter. Around this time, the father was hospitalized due to kidney problems. Respondent, having no place to live, stayed with him in the hospital room, while the children stayed with her parents. Shortly thereafter, Respondent had the DVPO dismissed.

On 17 August 2006, the Lincoln County Department of Social Services ("DSS") filed juvenile petitions alleging that Lance, Jasper, and Jane were neglected juveniles. The petitions alleged that the children lived in an environment injurious to their welfare based on the father's domestic violence and substance abuse issues, Respondent's continued involvement with the father, and Respondent's untreated mental health issues.

The trial court conducted an adjudication hearing on 9 October 2006, and, in an order entered 21 December 2006, the trial court adjudicated Lance, Jasper, and Jane dependent based on the consent of the parents. The adjudication was largely based on the allegations contained in the petition. Respondent also acknowledged that she was not able to care for her children. Furthermore, Respondent admitted that she had mental health issues, and the father admitted past drug abuse. By the time the order was entered, the parents had returned to New York.

Although the juvenile petition did not allege dependency, the parties consented to the adjudication and neither party subsequently challenged the adjudication.

The trial court conducted a separate disposition hearing on 13 November 2006, and entered an order on 3 January 2007. In the order, the trial court gave custody of the children to DSS and approved the children's placement with their maternal grandparents. The court allowed visitation, ordering DSS to arrange reasonable visitation, given the circumstances. The trial court also ordered Respondent to continue with therapy, obtain a domestic violence assessment, and to cooperate with any requests of case workers in the State of New York. Finally, the court ordered the father to comply with a number of conditions related to his substance abuse and domestic violence issues.

Over the course of the next year-and-a-half, Respondent and the father remained in the vicinity of Buffalo, New York. On 21 May 2007, the trial court conducted a permanency planning hearing. In the corresponding order, the trial court found that Respondent had begun a treatment program but had not yet provided any proof that she had completed a domestic violence assessment. The father had not completed any of the tasks ordered by the trial court. The parents had not attended any hearings and had not visited with the children since moving to New York. Nonetheless, the trial court ordered the parents to comply with the court's orders and maintained a permanent plan of reunification.

By the time of a 1 October 2007 review hearing, Respondent had given birth to a fourth child in New York. In the corresponding order, the trial court ceased telephone contact between parents and the children, because the children became unsettled and aggressive after telephone calls from the parents. In a 26 November 2007 permanency planning order, the trial court elaborated on the children's behavioral issues. The court found that Lance exhibited a number of serious behavioral issues, including urinating and defecating on himself and smearing feces on the walls of the home. Additionally, Lance had been diagnosed with Post Traumatic Stress Disorder ("PTSD") and Attention Deficit Hyperactive Disorder ("ADHD"). The twins were both well-adjusted and bonded with their grandparents. However, Jasper had some tantrums and disruptive behavior.

By the time of the hearing, Respondent was complying with her treatment, but continued to live with the father. The father still had not undertaken any of the tasks ordered by the trial court. Therefore, the trial court ceased reunification efforts as to the father, but continued a concurrent plan of reunification or guardianship with Respondent.

The trial court conducted another permanency planning hearing on 28 April 2008. In an order entered 22 May 2008 the trial court ceased reunification efforts with Respondent. The trial court found that, while Respondent attended therapy, she had a fourth child with the father and failed to report this information to DSS. She continued to reside with the father, had not visited the children since November 2006, was unemployed, and was unable to establish a safe and adequate home for four children. The court also found that the children had suffered significant trauma as a result of the parents' behavior.

On 26 June 2008, DSS filed a petition to terminate both parents' parental rights to Lance, Jasper, and Jane. DSS alleged the following grounds for termination as to both parents: (1) abuse; (2) neglect; (3) willfully leaving the juveniles in foster care for more than twelve months without showing reasonable progress to correct the conditions that led to removal; (4) willful failure to pay a reasonable portion of the cost of care for the juveniles for the six-month period preceding the filing of the petition despite being physically and financially able to do so; and (5) willful abandonment.

The trial court conducted a termination hearing on 6, 7, 8, and 20 January 2009. During the hearing, DSS called four witnesses to testify. The first witness was Dr. Richard Bergert, a licensed psychologist who had evaluated Lance, Jasper, and Jane. Dr. Bergert testified that there was a high probability that Lance had been severely abused by his father and that such abuse was the primary cause of Lance's animosity towards his biological parents. Dr. Bergert was also of the opinion that Respondent was often present during abusive situations, but never attempted to stop the father. In addition to ADHD and PTSD, Lance also had been diagnosed with oppositional defiant disorder. Dr. Bergert admitted that Lance was the focus of his evaluation, and that it was more difficult to evaluate the twins. However, the twins had multiple health issues and exhibited some symptoms of abuse, based on accounts of the grandparents.

Dr. Bergert's name is spelled inconsistently in the record. The transcript reports his name as "Bergert" while the order terminating parental rights spells the name as "Bridgette."

Dr. Bergert testified that Lance consistently described his father urinating on him. Lance also told Dr. Bergert and his therapist that his father had deliberately cut Lance's tongue and nose. Lance indicated to Dr. Bergert that neither of those incidents were accidental.

Dr. Bergert testified that Lance told him he saw his mother "hide" during these situations.

The grandparents told Dr. Bergert that all three children had frequent nightmares, and that Jane had on at least two occasions attempted to insert kitchen utensils or other objects into her own genitals.

The second witness was Teresa Grigg, a licensed clinical social worker, who provided therapy to the children. Ms. Grigg began seeing Lance in November 2006 and the twins in October 2007. According to Ms. Grigg, Lance regularly referred to his biological father as "mean daddy," stated that he wanted to be with his grandparents in North Carolina, and never wanted to go back to New York. On one occasion, Ms. Grigg witnessed Lance become agitated and aggressive after a telephone call from Respondent. Ms. Grigg further testified that the twins also became upset by the sound of their parents' voices. Ms. Grigg explained that both Jasper and Jane received speech therapy and had been diagnosed with chronic and severe PTSD.

Lance told Ms. Grigg that his father would hit him with a ball cap and with a belt.

The third witness was Respondent, who detailed her many moves over the past six years. Respondent testified that the father was involved in an altercation with his landlord on the night of 4 July 2008. Respondent testified that the landlord fired a gun into the house five times and struck the father in the leg. Both Respondent and the fourth child, Katie, were in the house during the shooting. Respondent testified that the incident might have been about drugs. Respondent moved out after the incident, and obtained her own apartment. She testified that she receives public assistance and works for her landlord, receiving reduced rent and a small wage. Respondent testified that the last time she saw the father was in November 2008. Respondent testified that she no longer has a relationship with the father.

The last witness was Donna Corriher, the DSS social worker who has been in charge of the children's case since June 2007. She expressed concern that Respondent was not living fully independent of the father. Ms. Corriher testified that Respondent admitted that the father was living with her in July of 2008. Ms. Corriher stated that she had received information indicating that the father had listed Respondent's address as his own. Finally, she referred to a home study from social services in Erie County, New York. An Erie County social worker acknowledged that the father was not necessarily living in Respondent's home, but felt that Respondent was still dependent on him and that he would continue to be involved in her life. Regarding disposition, Ms. Corriher provided evidence that Lance, Jasper, and Jane have spent the majority of their lives outside the care of their biological parents, that the children were doing well with their grandparents, and that she was not sure whether Respondent had a full understanding of the children's behavioral issues.

The trial court entered an order on 29 June 2009 terminating Respondent's parental rights to Lance, Jasper, and Jane. The court concluded that the following grounds existed to support termination: (1) neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (2009); and (2) willfully leaving the children in a placement outside the home for more than twelve months without showing reasonable progress in correcting the conditions which led to removal pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2009). The trial court then determined that it was in the children's best interest to terminate Respondent's parental rights. From this order, Respondent appeals.

The trial court also terminated the father's parental rights to the children. Although the father participated (through counsel) in the proceedings leading up to termination, he did not participate in the termination of parental rights hearing. The record does not explain his absence, and he does not appeal the order.

I.

Proceedings to terminate parental rights are conducted in two parts: (1) the adjudication stage, governed by N.C. Gen. Stat. § 7B-1109, and (2) the disposition stage, governed by N.C. Gen. Stat. § 7B-1110. In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003). We first address Respondent's challenges to the trial court's adjudicatory conclusions that grounds existed to terminate her parental rights to Lance, Jasper, and Jane.

Pursuant to N.C. Gen. Stat. § 7B-1111(a) (2009), a trial court may terminate parental rights upon a finding of one of the ten enumerated grounds. Here, the trial court found that two grounds existed to terminate Respondent's parental rights to the children: (1) neglect and (2) willfully leaving the juveniles in foster care for over twelve months without showing reasonable progress in correcting the conditions which led to the removal. Although Respondent challenges both grounds for termination, "[a] single ground under North Carolina General Statutes § 7B-1111 is sufficient to support an order terminating parental rights." In re J.M.W., E.S.J.W., 179 N.C. App. 788, 789, 635 S.E.2d 916, 917 (2006).

On appeal, we review the trial court's orders 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). Respondent does not challenge the trial court's findings of fact. Therefore, the trial court's findings of fact are binding on appeal. See In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003). We are left to determine whether the court's findings support its conclusions of law.

After reviewing the record, we find that the trial court's findings of fact are sufficient to support the conclusion that grounds for termination existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). N.C. Gen. Stat. § 7B-1111 lists neglect as one of the grounds for terminating parental rights and provides, in pertinent part:

(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) (2009). Neglect, in turn, is defined as follows:

Neglected juvenile. — 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).

When a child has not been in the custody of a parent for a significant amount of time prior to the termination hearing, as is the case here, "the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect." In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003). Because the determinative factor is the parent's ability to care for the child at the time of the hearing, we have explained that requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible. . . . Thus, the trial court must also consider evidence of changed conditions in light of the history of neglect by the parent and the probability of a repetition of neglect. In addition, visitation by the parent is a relevant factor in such cases.

Id. at 286-287, 576 S.E.2d at 407 (citations omitted). The trial court may then "find that grounds for termination exist upon a showing of a `history of neglect by the parent and the probability of a repetition of neglect.'" In re L.O.K., J.K.W., T.L.W. T.L.W., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (quoting Shermer, 156 N.C. App. at 286, 576 S.E.2d at 407).

In such cases, past neglect can be demonstrated by a prior adjudication of neglect. See, e.g., In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) ("[P]arental rights may . . . 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."). The instant case presents a different scenario. The children were not previously adjudicated neglected; they were adjudicated dependent. Nonetheless, while a prior adjudication of neglect constitutes evidence of past neglect, it is not necessary to such a finding.

We have previously explained that [a] finding that the parent has either abused or neglected the juvenile may serve as grounds for termination. [N.C. Gen. Stat. § 7B-1111(a).] However, the trial court may make such a finding in the N.C.G.S. § 7B-1109 adjudicatory hearing without having previously adjudicated the juvenile abused or neglected in a prior abuse, neglect, or dependency action. See In re Faircloth, 153 N.C. App. 565, 571, 571 S.E.2d 65, 69 (2002) ("An adjudicatory hearing on abuse and neglect allegations is not a condition precedent to a termination hearing. . . . [S]uch a hearing on abuse and neglect may well [be] merely redundant with parts of [a] termination hearing.").

In re R.B.B., 187 N.C. App. 639, 643, 654 S.E.2d 514, 518 (2007), disc. review denied, 362 N.C. 235, 659 S.E.2d 738 (2008). Indeed, in explaining the past neglect prong of the analysis, our Supreme Court explained that "evidence of neglect by a parent prior to losing custody of a child — including an adjudication of such neglect — is admissible in subsequent proceedings to terminate parental rights." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). Thus, a finding of past neglect need not be based on a prior adjudication of neglect.

In the instant case, the trial court's findings of fact establish that, prior to the children's removal, they lived in a home with a father who physically abused Respondent in the presence of the children and had a substance abuse problem. Although Respondent did not engage in these activities, she has exhibited a pattern of staying with the father, subjecting herself and her children to potential harm. Notably, she was forced to leave a women's shelter because she resumed her relationship with the father, which left Respondent and her children homeless.

Based on the testimony of expert witnesses, the trial court found that at least one of the children, Lance, was likely subjected to abuse. The trial court found that Respondent did not protect the children when they suffered abuse at the hands of the father. This finding is based on Lance's own account, his reference to Respondent as "mean mommie," and the aggressive behavior he exhibited while talking to Respondent on the telephone.

We note that Lance is the focus of the majority of the trial court's findings of fact related to the father's abuse. However, we find it relevant that the twins were living in the home at the time this abuse was occurring. N.C. Gen. Stat. § 7B-101(15) (2009) states that "[i]n determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile . . . lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home." Moreover, the trial court found that all three children were behind on their immunizations, suffered from nightmares at the time they were placed with their grandparents, and have been diagnosed with PTSD. Accordingly, we conclude that the trial court's findings of fact are sufficient to support the conclusion that the children suffered past neglect by Respondent.

Respondent argues that the trial court failed to consider her changed conditions in determining whether future neglect was likely. She contends that the trial court's conclusion is not supported by the evidence because the evidence shows that the father was the cause of the family's woes. Respondent also contends that it is unlikely any neglect would occur in the future, because she had moved out of his home. Although Respondent certainly bettered her situation by moving out of the father's home, we nonetheless find that the record supports a finding that it is probable that there would be a repetition of the neglect of the children if they were returned.

We disagree with Respondent's contention that the trial court failed to consider her changed circumstances. Indeed, the trial court made the following findings:

40. That [Respondent] suffers from Post Traumatic Stress Disorder and Bi-Polar Disorder. She currently takes Prozac as well as Welbutrin, each twice daily. . . .

41. That [Respondent] receives public assistance every two weeks in the amount of $76.00; she receives $323.00 per month in Food Stamps. The county in New York pays $215.00 per month towards her rent.

. . . .

51. That [Respondent] testified that [the father] is not living with her; however, the Court finds that [the father] continues to use her residential address as his address. . . .

We acknowledge that Respondent did make some positive changes in her life, namely, establishing a separate residence. But the trial court found that, despite receiving public assistance, Respondent still has not obtained employment or other income sufficient to support four children, and she does not have a sufficient support system in Buffalo, New York, apart from the father and his extended family. Moreover, Respondent left her children in North Carolina and moved to New York with the father and has not visited them since October 2006. As recently as July 2008, she was still living with the father and she and her youngest daughter were present when he was involved in violent altercation with the landlord. Finally, the trial court found that Respondent has limits on her ability to understand and properly care for the children, in light of their special needs.

Based on Respondent's pattern of leaving her children in placements outside the home, subjecting them to abuse by the father, and reuniting with the father, we find sufficient evidence to support the trial court's conclusion that future neglect is probable if the children are returned to the parents. Accordingly, we hold that the trial court did not err in concluding that grounds existed to terminate Respondent parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).

II.

We next consider Respondent's argument that the trial court erred by concluding that it was in the children's best interest to terminate Respondent's parental rights. After an adjudication determining that grounds exist for terminating parental rights, the trial court is required to consider the following factors in determining whether termination is in the juvenile's best interest:

(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.

(6) Any relevant consideration.

N.C. Gen. Stat. § 7B-1110(a) (2009). We review the trial court's determination that a termination of parental rights is in the best interest of the juvenile for an abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). "Abuse of discretion exists when `the challenged actions are manifestly unsupported by reason.'" Barnes v. Wells, 165 N.C. App. 575, 580, 599 S.E.2d 585, 589 (2004) (quoting Blankenship v. Town and Country Ford, Inc., 155 N.C. App. 161, 165, 574 S.E.2d 132, 134 (2002)).

In the instant case, the trial court's order indicates that the court considered the factors required by N.C. Gen. Stat. § 7B-1110(a). First, the trial court made a specific finding referencing all three children's dates of birth, which is indicative of consideration of the children's ages. Additionally, the trial court made the following dispositional findings of fact:

53. That the children are currently in the foster home in which they have resided for an extended period of time. Their foster parents wish to adopt the children and provide a permanent home for them. The expert witnesses in this case have testified and the Court so finds, that the foster parents have worked hard to care for the children and have responded appropriately to the children's needs and especially to the difficulties experienced by [Lance].

54. That the Social Worker, Donna Corriher, testified, and the Court so finds, that the children's best interest would be served by their continuing to reside with their related foster parents. . . . The [foster parents] are interested in adopting the children and the adoption by the [foster parents] would allow permanency in the lives of the children.

These findings of fact establish that the trial court considered the likelihood of adoption of the juveniles, whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juveniles, and the quality of the relationship between the juveniles and the proposed adoptive parents.

Although the trial court did not make any specific findings as to the bond between Respondent and the children, the court did find that Respondent had not visited the children since 25 October 2006 and that Lance had spent the majority of his life in foster care. The court also made findings regarding Lance's behavioral problems, including his hostility towards his biological parents. Testimony at the hearing established that the twins exhibited similar behavior and also spent the majority of their lives in foster care. We believe this evidence is sufficient to demonstrate that the trial court properly considered the bond between Respondent and the children in its best interest analysis. Thus, we do not believe that the trial court's omission constituted an abuse of discretion. See R.B.B., 187 N.C. App. at 648, 654 S.E.2d at 521 (holding that the trial court did not abuse its discretion although there was no specific finding regarding the bond between the parent and the child).

Respondent argues that the trial court failed to consider her unique situation and evidence of her changed circumstances in its best interest analysis. She contends that the father was the cause of the children's problems, that she was the victim of domestic violence, and that although she went through a rough period she now has control of her life. Her argument is, in essence, the same argument that she presented in support of her contention that the trial court erred in concluding that grounds existed to terminate her parental rights. While the trial court is not precluded from considering such evidence during the best interest analysis, it is not required to do so. See N.C. Gen. Stat. § 7B-1110(a); In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001) ("Evidence heard or introduced throughout the adjudicatory stage, as well as any additional evidence, may be considered by the court during the dispositional stage."). Moreover the court was certainly aware of these circumstances.

The record reveals that the trial court made the decision that it was in the children's best interests to terminate Respondent's parental rights based on a proper consideration of the statutory factors. We hold that the trial court did not err in determining that termination of Respondent's parental rights was in the children's best interests.

Affirmed.

Judges HUNTER, Jr. and BEASLEY concur.

Report per Rule 30(e).


Summaries of

In Matter of L.A.H

North Carolina Court of Appeals
Mar 16, 2010
692 S.E.2d 194 (N.C. Ct. App. 2010)
Case details for

In Matter of L.A.H

Case Details

Full title:IN THE MATTER OF: L.A.H., J.R.H., and J.L.H

Court:North Carolina Court of Appeals

Date published: Mar 16, 2010

Citations

692 S.E.2d 194 (N.C. Ct. App. 2010)
203 N.C. App. 149