Opinion
No. COA08-1504.
Filed June 16, 2009.
Orange County Nos. 06 JT 179-80.
Appeal by respondent-mother from order entered 19 September 2008 by Judge Beverly A. Scarlett in Orange County District Court. Heard in the Court of Appeals 11 May 2009.
Northen Blue, L.L.P., by Carol J. Holcomb and Samantha H. Cabe, for petitioner-appellee Orange County Department of Social Services. Peter Wood for respondent-appellant mother. Pamela Newell Williams for guardian ad litem .
Cassandra R. ("respondent") appeals from the district court's order terminating her parental rights to her eleven-year-old daughter, P.R., and her seven-year-old daughter, H.R. After careful review, we affirm in part and remand.
In 2005, respondent moved from Arizona to Orange County, North Carolina with daughters, H.R. and P.R., and her boyfriend and spiritual advisor, Marshall Ott ("Ott"). The children's father resides in Arizona. Respondent also has a son in Arizona, who is in the custody of his biological father. Respondent has a prior history with child protective services in Arizona, and her parental rights to two older children in Arizona have been terminated. Respondent also was convicted of felony child abuse in Arizona. The conviction was based upon her children's having non-accidental burns caused by cigarettes and a curling iron, and respondent entered a guilty plea pursuant to a plea agreement. After spending several years on probation, she moved to North Carolina in an attempt to find her biological family. Respondent was born in North Carolina, and when she was a juvenile, she spent time in the custody of the Alamance County Department of Social Services before being placed with relatives in California. Respondent claims to have been sold as a child, at which time her identity was stolen.
Respondent has a history of drug abuse, and she relapsed on cocaine shortly after P.R. and H.R. were removed from her custody. Respondent also has a history of mental illness. In February 2007, she was diagnosed with Delusional Disorder and Psychotic Disorder. According to respondent, she was prescribed approximately sixteen different medications from 7 July 2006 to 4 December 2006, all of which are used for the treatment of mood disorders. She claims to suffer from Multiple Sclerosis, Hyperacusis, migraine headaches, and other ailments which cause her physical pain. However, respondent's medical records reveal no objective findings for Multiple Sclerosis, Hyperacusis, or her other muscular -skeletal ailments.
Respondent's live-in companion, Ott, is a self-proclaimed minister. He has made numerous claims about his life, which the trial court found to be not credible. Ott claims to have degrees from at least three universities and to have studied law for three years. He also claims to be a concert pianist, a pilot, a former Congressional Aide, a former advisor to a congressman, a former corporate executive, and a member of the 1964 U.S. Olympic Team. He claims to have written twelve books, to have had breakfast with past presidents and members of Congress, and to have been the first person to sing and record the King James Version of the Bible "word for word." Finally, Ott claims to have died, during which time he spent two and one-half hours in heaven taking instructions from God to sell investments in a gold mine. Based on his revelation, Ott sold more than $800,000.00 in investments for gold that did not exist, and, as a result, spent twelve years in jail after having been convicted of securities fraud.
In November 2006, the Orange County Department of Social Services ("OCDSS") received reports expressing concern for the safety of P.R. and H.R. due to respondent's mental illness, her alleged drug use, the alleged selling of drugs in the family's home, and the children being left alone for long periods of time. Subsequently, an OCDSS social worker spoke with the children at their school and visited the family's home. During the home visit, a social worker observed bruising and swelling on Ott's face after he had been beaten, allegedly for "street-preaching." The children said he was beaten by "gangsters" who frequented their home in Orange County. On 17 November 2006, OCDSS received additional reports that the children were not in school and that a U-Haul trailer was parked at the home. On the same day, OCDSS filed petitions alleging that the children were neglected and that respondent was attempting to flee the jurisdiction with the children. The trial court also granted OCDSS non secure custody of both children that day.
By February 2007, respondent and Ott had moved to Brunswick County. The trial court conducted an adjudication hearing on 15 June 2007. On 2 July 2007, the trial court entered an order adjudicating both P.R. and H.R. dependent and neglected. On 16 August 2007, the trial court held a dispositional hearing and kept custody with OCDSS; the court allowed respondent supervised visitation only. On 9 October 2007, the trial court entered a corresponding written dispositional order.
Respondent appealed from the disposition and adjudication orders, and in an unpublished opinion filed on 1 April 2008, we reversed in part and affirmed in part. In re P.R., 189 N.C. App. 530, 659 S.E.2d 490, 2008 WL 852001 (unpublished), disc. rev. denied, ___ N.C. ___, 666 S.E.2d 125 (2008). We reversed the trial court's conclusion that the children were dependent, but affirmed the trial court's conclusion that the children were neglected. In re P.R., 189 N.C. App. 530, 659 S.E.2d 490, 2008 WL 852001, at *3.
The trial court conducted a review hearing on 6 September 2007. OCDSS previously had filed a motion to transfer the case to Brunswick County Department of Social Services ("BCDSS"), but, at the time of the review hearing, asked the trial court to postpone ruling on the motion to transfer. Respondent, however, requested transfer to Brunswick County, and the court denied her request. At the 4 October 2007 review hearing, the trial court again addressed the issue of transferring the case to Brunswick County. Although OCDSS previously had sought transfer to BCDSS, the circumstances of the case had changed by the time of the 4 October 2007 hearing. At that time, both OCDSS and the guardian ad litem ("GAL") opposed transfer. OCDSS had located a new placement for the children and wished to pursue adoption. The GAL also explained that respondent had a history of moving around and knew the circumstances of respondent's children's case when she decided to leave Orange County. The trial court (1) denied respondent's motions, (2) kept custody with OCDSS, (3) relieved OCDSS of further reunification efforts, and (4) ordered any motions or petitions to terminate parental rights to be filed within sixty days. Finally, the trial court disapproved of placement with the children's father in Arizona, based upon the negative results of OCDSS's home study of the father.
On 20 November 2007, OCDSS filed a motion to terminate respondent's parental rights on the following grounds: (1) neglect, (2) willfully leaving the juvenile in foster care for over twelve months without showing reasonable progress in correcting the conditions which led to removal, and (3) dependency.
The trial court conducted a termination hearing on 11 July 2008, and entered a written order terminating respondent's parental rights on 5 September 2008. On 19 September 2008, the trial court entered an amended order terminating respondent's parental rights. Alycia Blackwell, an OCDSS social worker, and the GAL testified on behalf of OCDSS. Vicki Hallman, a clinical psychologist, and Makeba Shaw, a Brunswick County social worker, testified on behalf of respondent. After hearing testimony from the witnesses, the trial court concluded that four grounds existed to terminate respondent's parental rights to H.R. and P.R.: (1) respondent neglected the juveniles; (2) respondent willfully left the juveniles in foster care for more than twelve months without showing reasonable progress in correcting the conditions which led to the removal of the juveniles; (3) the juveniles were dependent because respondent was incapable of providing for the proper care and supervision of the juveniles, and there was a reasonable probability that such incapability would continue for the foreseeable future; and (4) the parental rights of respondent with respect to another child had been terminated involuntarily by a court of competent jurisdiction, and respondent lacked the ability or willingness to establish a safe home. The trial court then determined that it was in the juveniles' best interests to terminate respondent's parental rights. Respondent timely gave notice of appeal.
Respondent first argues that the evidence does not support the trial court's conclusions that grounds exist to terminate her parental rights. We disagree.
Pursuant to North Carolina General Statutes, section 7B-1111 (a), a trial court may terminate parental rights upon a finding of one of the ten enumerated grounds. N.C. Gen. Stat. § 7B-1111 (a) (2007). "So long as the findings of fact support a conclusion [that one of the enumerated grounds exists] the order terminating parental rights must be affirmed." In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) (citation omitted). Although respondent challenges all four grounds for termination, "[a] single ground . . . 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). Therefore, if we determine that the findings of fact support one of the grounds, we need not review the other three. See In re Humphrey, 156 N.C. App. at 540, 577 S.E.2d at 426-27.
Although respondent makes a few general references to the findings of fact, she offers specific challenges in her brief to only two findings of fact. Because respondent has not argued the assignments of error related to the remaining findings of fact, we deem these assignments of error abandoned. In re D.D.F., 187 N.C. App. 388, 398, 654 S.E.2d 1, 7 (2007) (citing N.C. R. App. P. 28(b)(6)). For this reason, the trial court's remaining findings of fact are binding on appeal. See Humphrey, 156 N.C. App. at 540, 577 S.E.2d at 426.
Respondent properly challenges findings of fact numbered 15 and 16, which provide as follows:
15. Because of Respondent mother's and Marshall Ott's untreated mental illness, the children would be unsafe in their home as they cannot parent them.
16. [OCDSS] has met their burden of proof by clear and convincing evidence that the parental rights of Respondent mother should be terminated.
However, neither of these findings are necessary to support the conclusion that a ground for termination exists. These findings do little more than summarize the unchallenged findings, reiterate parts of other findings, and state the standard of proof for a second time.
The trial court's unchallenged findings of fact are sufficient to support the conclusion that a ground for termination exists pursuant to North Carolina General Statutes, section 7B-1111 (a)(2). This ground for termination requires the trial court to find that the parent willfully left the juvenile in foster care for more than twelve months and that the parent has not made reasonable progress to correct the conditions which led to the removal of the juvenile. In re O.C. O.B., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396, disc. rev. denied, 360 N.C. 64, 623 S.E.2d 587 (2005). Furthermore, pursuant to section 7B-1111 (a)(2), willfulness does not require a showing of fault by the parent. In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996).
Our review discloses that the children had been in foster care for the requisite period of time. We previously have held that the term "for more than 12 months" in section 7B-1111 (a)(2), refers to the duration of time beginning with the child's removal from the home pursuant to a court order and ending with the termination petition or motion. In re A.C.F., 176 N.C. App. 520, 526, 626 S.E.2d 729, 734 (2006). Here, the children were removed from respondent on 17 November 2006 pursuant to a non secure custody order, and OCDSS filed the motion to terminate parental rights on 20 November 2007, just over twelve months later.
We already have set forth respondent's mental health and other problems leading up to the children's removal. After the removal, respondent entered into an Out of Home Family Services Agreement with OCDSS, in which she agreed (1) to obtain a mental health assessment and follow through with treatment, (2) to obtain a substance abuse assessment and follow through with any recommendations, (3) to obtain stable housing and transportation, and (4) to complete satisfactorily a parenting skills program. The following findings of fact address respondent's case plan:
10. Respondent mother and Marshall Ott[] reside in a nice home in Brunswick County which costs $120,000.00 and is apparently paid for. . . . Respondent mother and Marhshall Ott have no verifiable means of support, other than Respondent mother's recent approval for disability benefits, and arts and crafts they claim to sell.
11. Respondent mother and Marshall Ott[] attended parenting classes but did not complete them. They were given certificates prior to the completion of the classes. Their early departure from the class was a result of their behavior.
12. Respondent mother took drug screens until reunification efforts were ceased. The drug screens taken were negative for substances. The last known drug screen was in October[] 2007. On one occasion, Respondent mother refused a [urinalysis]. Additionally, for various reasons, the protocol for the drug screens is unreliable.
13. Respondent mother has chosen Marshall Ott as her life partner. He was included in the case plan, but there is no evidence that he did anything requested in the plan.
14. There is sufficient evidence throughout the history of this case, the juvenile file and at this hearing for the court to conclude that Respondent mother suffers from severe and serious mental illness. Her behavior today is consistent with her mental illness. . . . She has not adequately been treated for her mental illness. Likewise, her life partner, Marshall Ott suffers from mental illness and there is no evidence before the court that he is being treated for his mental illness.
We hold that these findings of fact are sufficient to support the conclusion that respondent willfully left her children in foster care for over twelve months and has not made reasonable progress to correct the conditions which led to removal of the children.
Next, respondent argues that the trial court erred by concluding that it was in the best interests of H.R. and P.R. to terminate respondent's parental rights. Specifically, respondent contends that the trial court abused its discretion by terminating her parental rights to P.R. and H.R. after creating an unfair and hopeless situation for respondent. She claims that the court is at fault because it refused to transfer venue to Brunswick County. We hold that the trial court's conclusion that respondent's parental rights should be terminated is not supported by proper findings of fact, and therefore, we must remand the matter. After an adjudication determining that grounds exist for terminating parental rights, the trial court determines whether termination is in the best interests of the juvenile upon mandatory consideration of
We address respondent's contention that the trial court created an unfair situation by denying her motion to transfer the case to Brunswick County in our analysis of respondent's final argument on appeal.
(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) (2007). 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).
Here, the trial "court [took] judicial notice of the record in this matter; the evidence offered and accepted at prior hearings, in particular the Adjudication Hearing as well as the previous findings of fact in both the June 2007 Adjudication Order and all other review orders enter [ed] in the juvenile file." We previously have held that a trial court is free to "take judicial notice of earlier proceedings in the same case ." In re W.L.M. B.J.M., 181 N.C. App. 518, 523, 640 S.E.2d 439, 442 (2007) (citations omitted). Here, however, the trial court's order does not clearly reveal that the trial court considered any of the mandatory "best interest" factors, including (1) the age of the juveniles, (2) the likelihood of adoption of the juveniles, (3) whether the termination of respondent's parental rights will aid in the accomplishment of the permanent plan for the juveniles, (4) the bond between the juveniles and respondent, or (5) the quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement. Accordingly, we remand the matter to the trial court for entry of appropriate findings pursuant to North Carolina General Statutes, section 7B-1110 (a).
Finally, we turn to respondent's argument that the trial court erred by ceasing reunification efforts at the 4 October 2007 permanency planning hearing. We disagree.
A parent who wishes to appeal an order ceasing reunification must give notice "in open court or in writing within 10 days of the hearing at which the court orders the efforts to reunify the family to cease." N.C. Gen. Stat. § 7B-507 (c). If the parent properly preserves her right to appeal, the order to cease reunification may be reviewed together with the parent's appeal of an order terminating parental rights. N.C. Gen. Stat. § 7B-1001 (a)(5) (2007). Respondent complied with these statutory requirements by filing a written "Notice of Right to Preserve for Appeal" on 8 October 2007. This notice, along with her notice of appeal from the trial court's order terminating parental rights, properly preserved her right to appeal the trial court's decision to cease reunification efforts at the 4 October 2007 permanency planning hearing. Accordingly, respondent is entitled to appellate review of the order to cease reunification.
North Carolina General Statutes, section 7B-507 (b) permits a trial court to cease reunification efforts under the following circumstances:
In any order placing a juvenile in the custody or placement responsibility of a county department of social services, . . . the court may direct that reasonable efforts to eliminate the need for placement of the juvenile shall not be required or shall cease if the court makes written findings of fact that:
(1) Such efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time[.]
N.C. Gen. Stat. § 7B-507 (b) (2007). A trial court may "only order the cessation of reunification efforts when it finds facts based upon credible evidence presented at the hearing that support its conclusion of law to cease reunification efforts." In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003) (citation omitted). "This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court's conclusions, and whether the trial court abused its discretion with respect to disposition." In re C.M., 183 N.C. App. 207, 213, 644 S.E.2d 588, 594 (2007) (citations omitted).
Although respondent assigned error to several findings of fact from the permanency planning order, she does not specifically argue them in her brief. She does little more than offer a bare assertion that the findings are not supported by competent evidence. We previously have held that "[a] broadside exception . . . does not present for review the sufficiency of the evidence to support the entire body of the findings of fact." In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001) (citation omitted). "Instead, the trial court's findings of fact are binding on appeal, and we are left to determine whether the trial courts findings support its conclusion of law." Id. For this reason, the trial court's permanency planning findings of fact are binding on appeal. See In re Humphrey, 156 N.C. App. at 540, 577 S.E.2d at 426.
We hold that the following findings of fact are relevant with respect to ceasing reunification, and because respondent has failed to challenge any findings, we also hold that they are supported by credible evidence:
9. It is not possible for the juvenile[s] to be returned home in the immediate future or within the next six (6) months and in support thereof, the court specifically finds:
a) The mental illness and alleged physical illnesses of Respondent mother and the multiple medications she has taken, her use of cocaine and her choice to live with Mr. Ott, who is mentally ill, have put the juveniles at risk in that it has created an environment that is injurious to the health and welfare of the juveniles and has created an atmosphere in which the juveniles have not been and cannot be properly supervised.
b) The results of the home study of Respondent/father in Arizona are negative, and placement of the juveniles with him is disapproved.
10. Legal guardianship or custody with a relative is not possible and should not be established as no suitable relative placement has been identified despite diligent efforts by OCDSS.
. . . .
12. Further efforts to reunify or place the juvenile[s] with Respondent/parents would be futile or inconsistent with the best interest of the juvenile in that:
a) Respondent/mother is chronically mentally ill with a poor prognosis.
b) Respondent/father, who lives in Arizona, was evaluated by the Arizona Department of Social Services who found his home to be unsuitable for children.
The trial court also outlined OCDSS' reasonable efforts to reunify the children with respondent, including services provided to respondent by BCDSS to address her case plan, services provided to both the children and respondent to encourage visitation and communication, and various other services provided to the children. The court's remaining findings of fact detail respondent's medical problems, her history with child protective services, and her relationship with Ott.
After making these findings, the trial court relieved OCDSS of further reunification efforts and changed the permanent plan to adoption. In sum, the findings establish that respondent has a serious mental illness, which she has not treated adequately notwithstanding OCDSS' attempts to offer support services. Respondent's condition and her previous history with child protective services support the trial court's conclusion that any further efforts would be futile.
Respondent's argument, however, focuses upon the final prong of our analysis: whether the trial court abused its discretion. Respondent again argues that it was unfair for the trial court to deny her request for transfer to Brunswick County. She contends that the trial court abused its discretion in denying her request while it contemporaneously ceased reunification. We disagree.
"`An abuse of discretion occurs when a trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision .'" In re C.M., 183 N.C. App. at 213, 644 S.E.2d at 594(quoting Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 109, 493 S.E.2d 797, 802 (1997), disc. rev. denied, 347 N.C. 670, 500 S.E.2d 84 (1998)). The GAL reported that the children recently had moved to a long-term foster placement. The GAL also noted that the children needed a sense of permanence in their lives, due to respondent's transient nature. Therefore, the GAL recommended adoption. The trial court agreed, and, in relevant part, the trial court explained its reasoning for ceasing reunification as follows:
[T]he children's mental health desperately depends on a sense of permanence and a sense of belonging to a family; and, that — therefore, that the timing is crucial for these children that we proceed in this case to get them permanence.
. . . .
The plan should change to adoption. Supervised visits, as well as telephone contact, should be at the discretion of the Department and the Guardian. Only if the Department and the Guardian believe that it's in the best interest of these children to have contact with their mother should it be allowed. Given the children's need for permanence, the trial court did not abuse its discretion to deny the transfer. Based upon the foregoing, we hold that the trial court made a reasoned decision to cease reunification efforts and change the permanent plan to adoption. The corresponding assignments of error are overruled.
For the foregoing reasons, we affirm in part, and remand for appropriate findings and conclusions pursuant to North Carolina General Statutes, section 7B-1110 (a), relating to the termination of respondent's parental rights vis-a-vis the best interests of the juveniles.
Affirmed in part; Remanded.
Judges STEPHENS and STROUD concur.
Report per Rule 30(e).