Opinion
No. COA09-1646
Filed 15 June 2010 This case not for publication
Appeal by respondent-parents from order entered 10 September 2009 by Judge Michael D. Duncan in Wilkes County District Court. Heard in the Court of Appeals 29 April 2010.
Paul W. Freeman, Jr., for petitioner-appellee Wilkes County Department of Social Services. Pamela Newell Williams for Guardian ad Litem. Patricia Kay Gibbons for respondent-appellant-mother. Michael E. Casterline for respondent-appellant-father.
Wilkes County No. 06 JT 130.
On 18 August 2006, petitioner Wilkes County Department of Social Services ("DSS") obtained non-secure custody of P.R.B. and filed a petition alleging he was a neglected juvenile. P.R.B. was adjudicated neglected by order entered 28 November 2006. In July 2008, the trial court relieved DSS of further reunification efforts. Respondent-mother B. filed notice to preserve her right to appeal that order. On 27 August 2008, DSS filed a petition to terminate the parental rights of B. and R., the juvenile's biological father. On 6 March 2009, DSS filed an amended petition alleging neglect of P.R.B. and obtained a new non-secure custody order. On 8 April 2009, the trial court entered an order again adjudicating P.R.B. neglected, relieving DSS of further reunification efforts and reaffirming the permanent plan as adoption. Respondent-mother again gave notice preserving her right to appeal. DSS filed a new petition for termination of parental rights on 29 April 2009, having dismissed the original petition. Respondent-parents appeal from the trial court's 10 September 2009 order terminating their parental rights to P.R.B. As discussed herein, we affirm.
Initials have been used throughout to protect the identity of the juvenile.
Facts
In July 2006, DSS initiated a safety plan for sixteen-year-old B. and her infant son P.R.B. after dog feces, dried food and trash were found scattered about B.'s mother's home where they were living. DSS placed P.R.B. with his paternal grandparents and, believing B. was emancipated, left B. with her mother. Upon discovering that B. was not emancipated, DSS obtained non-secure custody of both B. and her son and placed them in various foster homes. Eventually they were placed at the Rainbow Center, where they remained until B. turned eighteen and returned to her mother's home. P.R.B. remained in DSS custody and was placed with a foster family.
Respondent-mother makes six arguments in her brief to this Court: the trial court (I) lacked standing to initiate the termination proceeding because DSS lacked custody of P.R.B.; and erred in (II) basing its termination order on the original juvenile petition and non-secure custody order, (III) taking judicial notice of prior court orders, and concluding that (IV) P.R.B. was neglected, (V) respondent-mother wilfully left P.R.B. in foster care for more than twelve months, and (VI) respondent-mother wilfully failed to pay a reasonable portion of child care for six months. Respondent-father's counsel has submitted a "no merit" brief pursuant to N.C. R. App. P. 3.1(d). As discussed below, we affirm the trial court's order.
Standard of Review
"Termination of parental rights is a two-step process. In the first phase of the termination hearing, the petitioner must show by clear, cogent and convincing evidence that a statutory ground to terminate exists." In re S.N., 194 N.C. App. 142, 145-46, 669 S.E.2d 55, 58 (2008) (citations omitted), affirmed per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009). Once the existence of any one of the statutory grounds is established, "the trial court moves to the second, or dispositional, stage, where it determines whether it is in the best interest[] of the child to terminate the parental rights." In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 5 (citations and quotation marks omitted), disc. review denied, In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004). "On appeal, [o]ur standard of review for the termination of parental rights is whether the [trial] court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law." In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003) (citations and quotation marks omitted). However, "[t]he trial court's conclusions of law are fully reviewable de novo by the appellate court." In re S.N., 194 N.C. App. at 146, 669 S.E.2d at 59 (citation and quotation marks omitted).
I
Respondent-mother first argues the trial court lacked standing to initiate the termination proceeding because DSS lacked custody of P.R.B. We disagree.
"Standing is jurisdictional in nature and `[c]onsequently, standing is a threshold issue that must be addressed, and found to exist, before the merits of [the] case are judicially resolved.'" In re Miller, 162 N.C. App. 355, 357, 590 S.E.2d 864, 865 (2004) (quoting In re Will of Barnes, 157 N.C. App. 144, 155, 579 S.E.2d 585, 592 (2003)). Standing to file a petition to terminate parental rights is conferred by statute:
(a) A petition or motion to terminate the parental rights of either or both parents to his, her, or their minor juvenile may only be filed by one or more of the following:
. . .
(3) Any county department of social services, consolidated county human services agency, or licensed child-placing agency to whom custody of the juvenile has been given by a court of competent jurisdiction.
N.C. Gen. Stat. § 7B-1103 (2010). This Court has held that a nonsecure custody order is sufficient to confer standing on DSS to file a petition to terminate parental rights. In re T.M., 182 N.C. App. 566, 571, 643 S.E.2d 471, 475 (2007).
Here, respondent-mother asserts that the original 2006 neglect petition was flawed and, as a result, DSS never had custody of P.R.B. and, thus, lacked standing to file a petition to terminate her parental rights. Finding 6 of the trial court's 20 March 2009 non-secure custody order states:
As a result of an unpublished Decision by the North Carolina Court of Appeals, counsel for the Wilkes County Department of Social Services determined that there was a substantial doubt as to whether the original Juvenile Petition filed in this matter in 2006 was properly signed and/or verified. Because of this question and the holding of the aforesaid opinion that an improper signature deprived the Trial Court of subject matter jurisdiction, the Wilkes County Department of Social Services has filed an Amended Petition alleging the neglect of [P.R.B.]. In order to properly protect the Department's custody of the child, the Department of Social Services also obtain[ed] a new Nonsecure Custody Order.
As noted above, on 27 August 2008, DSS filed its original petition to terminate respondents' parental rights. However, on 6 March 2009, apparently due to the concerns discussed above about the 2006 original neglect petition, DSS filed an amended petition alleging neglect of P.R.B. and, on 20 March 2009, obtained a new non-secure custody order. On 8 April 2009, the trial court entered a second order adjudicating P.R.B. neglected, relieving DSS of further reunification efforts and reaffirming adoption as the permanent plan. DSS then filed a new petition for termination of parental rights on 29 April 2009, having previously dismissed the 27 August 2008 petition.
In her brief, respondent-mother asserts that the original 2006 neglect petition was "flawed" without specifying how it was inadequate. She then states that the 6 March 2009 amended neglect petition "did not cure the error in the original juvenile petition[,]" again without explaining or providing authority for this assertion. We note that respondent-mother did not appeal from the 2006 adjudication order, which is not before us. In any event, respondent-mother does not challenge the 20 March 2009 non-secure custody order which was sufficient to confer standing on DSS to file the 29 April 2009 petition to terminate parental rights. In re T.M., 182 N.C. App. at 571, 643 S.E.2d at 475. This argument is overruled.
II
Respondent-mother next argues the trial court erred in basing its order terminating her parental rights on the original neglect petition and non-secure custody order. We disagree.
Respondent-mother correctly states that the 2006 neglect petition and non-secure custody orders are mentioned in findings of fact 6,7,9 and 10 in the order terminating her parental rights, and that the second (2009) non-secure custody order is not mentioned. She then asserts "[c]learly, therefore, the Order Terminating Parental Rights is based on allegations contained in the original Petition to Terminate Parental Rights, which Petition was voluntarily dismissed by the Petitioner." We are not able to understand respondent-mother's argument on this point. The termination order here, like any similar order, is based not on allegations in a petition, but rather on the evidence before the trial court. The trial court made numerous findings on the issues raised in the second petition to terminate respondent-mother's parental rights. Further, respondent-mother cites no authority, nor are we aware of any, that requires a trial court to mention a non-secure custody order in its termination order. This assignment of error is without merit.
III
Respondent-mother next argues the trial court erred when it took judicial notice of prior orders in the case. We disagree.
As respondent-mother acknowledges, a trial court is permitted to take judicial notice of earlier proceedings in the same case. In re J.B., 172 N.C. App. 1, 16, 616 S.E.2d 264, 273 (2005). "A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." N.C. Gen. Stat. § 8C-1, Rule 201 (2010). In a termination of parental rights proceeding, prior orders in the case comply with the statute because they are not subject to reasonable dispute and, therefore, they may be judicially noticed. In re J.W., 173 N.C. App. 450, 456, 619 S.E.2d 534, 540 (2005), affirmed, 360 N.C. 361, 625 S.E.2d 780 (2006). Further, the trial court "is presumed to have disregarded any incompetent evidence" and to have conducted "the independent determination required when prior [] orders have been entered in the matter." Id. (internal citations and quotation marks omitted). We therefore overrule respondent-mother's argument that, in taking judicial notice of the prior orders in this case, the trial court failed to conduct an independent determination of the facts and evidence.
IV
Respondent-mother also argues the trial court erred in finding P.R.B. was neglected pursuant to N.C.G.S. § 7B-1111(a)(1). We disagree.
This Court has held:
An adjudication of neglect warranting termination of parental rights must be proved by clear, cogent, and convincing evidence that the child is a neglected juvenile as defined by N.C. Gen. Stat. § 7B-101(15). See N.C.G.S. § 1111(a)(1); Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. N.C. Gen. Stat. § 7B-101(15) (2005) defines a neglected juvenile as one who, inter alia, has not received proper care, supervision, or discipline from the juvenile's parent, or who has not been provided necessary medical care. A determination of neglect must be based on evidence showing neglect at the time of the termination proceeding. In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997) (citing In re Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232 (1984)) (emphasis added).
Where, as in the present case, "a child has not been in the custody of a 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." In re Pierce, 146 N.C. App. 641, 651, 554 S.E.2d 25, 31 (2001), affirmed, 356 N.C. 68, 565 S.E.2d 81 (2002). "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."
Id. (citing Ballard, 311 N.C. at 714, 319 S.E.2d at 231); see In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003). "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." Ballard, 311 N.C. at 715, 391 S.E.2d at 232. Where evidence of prior neglect is considered, a trial court must also consider evidence of changed circumstances and the probability of a repetition of neglect. Id.
In re J.G.B., 177 N.C. App. 375, 381-82, 628 S.E.2d 450, 455 (2006). In assessing changed circumstances, the trial court may consider whether the parent has "made any meaningful progress in eliminating the conditions that led to the removal of [the] children." In re Leftwich, 135 N.C. App. 67, 72, 518 S.E.2d 799, 803 (1999)
Here, the trial court concluded that P.R.B. was neglected because: 1) there had been a prior adjudication of neglect; and 2) there was a substantial likelihood of repetition of neglect if she regained custody of P.R.B. because respondent-mother's circumstances had not changed significantly since the adjudication. Respondent-mother asserts that the trial court erred because the order does not contain findings about prior neglect. However, the trial court found that P.R.B. was adjudicated neglected in 2006, and further took judicial notice of and also incorporated by reference all prior filings and orders in the case file. As discussed in section I above, the 2006 adjudication of neglect was not challenged. In addition, the many prior orders incorporated by reference as findings include numerous examples of neglect, including respondent-mother's exposure of P.R.B. to incidents of instability, drug use, and domestic violence when he was in her custody.
The trial court then made findings about respondent-mother's lifestyle and behavior at the time of the termination hearing, specifically that she had: failed to comply with her case plan by maintaining employment, getting her GED and driver's license, completing various classes and meeting regularly with her social worker; failed to demonstrate improved parenting skills; and remained "immature regarding her appreciation of [P.R.B.]'s concerns and well-being." Based on its findings, the trial court properly concluded there was a significant probability of a repetition of neglect if P.R.B. was returned to respondent-mother. This argument is overruled.
V, VI
Because we affirm the trial court's conclusion that P.R.B. was neglected pursuant to section 7B-1111(a)(1), we need not address respondent-mother's additional arguments. See In re J.M.W., 179 N.C. App. 788, 789, 635 S.E.2d 916, 917 (2006) ("A single ground under North Carolina General Statutes § 7B-1111 is sufficient to support an order terminating parental rights.").
Respondent-Father's Appeal
Respondent-father's appellate counsel has filed a no-merit brief pursuant to N.C. R. App. P. 3.1(d) stating that, after conscientious and thorough review of the record on appeal, he has concluded there is no issue on which we might grant relief to his client. We agree.
In accordance with Rule 3.1(d), appellate counsel provided respondent-father with copies of the no-merit brief, record on appeal, and transcript, and advised him of his right to file a brief with this Court pro se. Respondent-father has made no pro se filing in this appeal.
Specifically, our careful review of the record reflects that respondent-father has never paid any support toward P.R.B.'s care, either while in regular employment or while employed during his incarceration in the Department of Correction. This evidence provides clear and convincing support for the trial court's finding that, for the six months preceding the termination hearing, respondent-father willfully failed "to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so." See N.C.G.S. § 7B-1111(a)(3).
Having determined that a ground existed to support the trial court's termination of respondent-father's parental rights, we see no abuse of discretion in the trial court's conclusion that termination was in P.R.B.'s best interest. Thus, we affirm the termination of respondents' parental rights to P.R.B.
Affirmed.
Judges ELMORE and ERVIN concur.
Report per Rule 30(e).