Opinion
No. COA16-208
11-15-2016
IN THE MATTER OF: S.I.P. and T.E.P.
Charles E. Wilson, Jr., for petitioner-appellee Cleveland County Department of Social Services. Lisa Anne Wagner, for respondent-appellant mother. J. Thomas Diepenbrock, for respondent-appellant father. Parker Poe Adams & Bernstein LLP, by Eric H. Cottrell, for guardian ad litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Cleveland County, Nos. 14 JT 29, 69 Appeal by respondent-mother and respondent-father from order entered 25 November 2015 by Judge Jeannette R. Reeves in Cleveland County District Court. Heard in the Court of Appeals 10 October 2016. Charles E. Wilson, Jr., for petitioner-appellee Cleveland County Department of Social Services. Lisa Anne Wagner, for respondent-appellant mother. J. Thomas Diepenbrock, for respondent-appellant father. Parker Poe Adams & Bernstein LLP, by Eric H. Cottrell, for guardian ad litem. CALABRIA, Judge.
Respondent-mother and respondent-father (collectively, "respondents" or "the parents") appeal from the trial court's order terminating their parental rights to S.I.P. ("Sam") and T.E.P. ("Tommy"). After careful review, we affirm.
Pseudonyms are used to protect the identities of the juveniles and for ease of reading.
I. Background
Tommy was born on 5 June 2010. On 24 October 2012, the Mecklenburg County Department of Social Services, Youth and Family Services Division ("YFS"), obtained non-secure custody of Tommy and filed a juvenile petition alleging that he was neglected and dependent. According to the petition, YFS became involved with the family on 24 July 2012 upon a referral from the Wilson County Department of Social Services, which had received a report that two-year-old Tommy was alone outside wearing only a diaper. A couple of weeks after the incident, the family relocated to Charlotte. The petition also alleged that respondent-mother had substance abuse problems and was receiving methadone treatment for a heroin addiction. Although YFS began providing services to the family, Tommy was again discovered alone outside.
YFS received another report on 11 October 2012, which precipitated the filing of the juvenile petition. On that date, Tommy, respondent-mother, and a friend were involved in a serious car accident. Respondent-mother's friend was driving the vehicle and engaged in a high-speed chase with police. He crashed the vehicle into a church building, and all three occupants were ejected from the car. When the vehicle crashed, Tommy was seated in a car seat but was not properly restrained. Tommy sustained serious injuries, including a skull fracture and a brain injury, and he and respondent-mother were admitted to the hospital. According to the petition, respondent-father was incarcerated at the time.
In an order entered on 15 January 2013, the trial court adjudicated Tommy neglected and dependent, based on a mediated agreement entered into by respondents and YFS. In the dispositional portion of the order, the trial court ordered Tommy to remain in YFS custody. As part of the mediated agreement, both parents agreed to comply with mediated case plans. Respondent-mother agreed to, inter alia, complete a Families In Recovery to Stay Together ("F.I.R.S.T.") assessment and comply with all recommendations; maintain sobriety, participate in random drug testing, and continue with treatment and/or counseling; sign all necessary releases for YFS to monitor progress; complete parenting classes; maintain stable employment and appropriate housing; and contact her social worker on a weekly basis. Respondent-father agreed to similar directives.
When the permanency planning hearing was held in January 2014, respondent-mother was pregnant with Sam, and respondents had moved to Myrtle Beach, then to Henderson County, and finally to Cleveland County. In an order entered on 7 February 2014, the trial court maintained reunification as the permanent plan for Tommy and determined that the case should be transferred to Cleveland County. On 15 May 2014, Tommy's case was formally transferred to Cleveland County.
Sam was born on 17 February 2014. On 27 March 2014, the Cleveland County Department of Social Services ("DSS") obtained non-secure custody of Sam and filed a petition alleging that he was neglected. According to the petition, shortly after Sam was born, DSS received a report that he was experiencing severe methadone withdrawal and had been hospitalized since birth. The petition alleged that respondent-mother had a history of prescription drug abuse and had been on methadone for seven years. The petition further alleged that the parents had only minimal visits with Sam after his birth, failed to nurture and bond with him, failed to properly feed him, and were observed turning off his hospital alert monitors.
On 11 September 2014, based on the stipulations of the parents, the trial court entered an adjudication and disposition order concluding that Sam was a neglected juvenile. The parents also consented to the entry of new case plans. In the dispositional portion of the order, the trial court ordered Sam to remain in DSS custody. The trial court also ordered respondents to submit to random drug testing; sign all necessary releases of their medical records; obtain psychological evaluations and substance abuse assessments and comply with all recommendations; complete parenting classes through a court-approved provider and demonstrate appropriate parenting skills; and maintain safe and stable housing.
On 9 December 2014, DSS filed petitions to terminate respondents' parental rights to Sam and Tommy, alleging the following grounds for termination against both parents: (1) neglect; and (2) failure to pay a reasonable portion of the cost of care for the juvenile. See N.C. Gen. Stat. § 7B-1111(a)(1), (3) (2015). As to Tommy, DSS also alleged the additional ground of failure to make reasonable progress toward correcting the conditions that led to his removal from the home. See N.C. Gen. Stat. § 7B-1111(a)(2). Following a hearing, on 25 November 2015, the trial court entered an order terminating respondents' parental rights to both children based upon all three grounds. The court concluded that it was in the children's best interests to terminate respondents' parental rights. Respondents appeal.
II. Analysis
A. Grounds for Termination
We first address respondents' challenges to the trial court's grounds for termination of their parental rights. Pursuant to N.C. Gen. Stat. § 7B-1111(a), a trial court may terminate parental rights upon a finding of one of eleven enumerated grounds. See generally N.C. Gen. Stat. § 7B-1111(a)(1)-(11). If this Court determines that the trial court's findings of fact support one ground for termination, we need not review the other challenged grounds. In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003). We review the trial court's order 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) (citation omitted).
We conclude that the trial court's findings of fact are sufficient to support termination of respondents' parental rights to both Sam and Tommy pursuant to section 7B-1111(a)(1), which provides for termination based upon a finding that "[t]he parent has . . . neglected the juvenile." N.C. Gen. Stat. § 7B-1111(a)(1). "The juvenile shall be deemed to be . . . neglected if the court finds the juvenile to be . . . a neglected juvenile within the meaning of [N.C. Gen. Stat. §] 7B-101." Id. That statute provides, in pertinent part, that a "neglected juvenile" is
[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). Generally, "[a] finding of neglect sufficient to terminate parental rights 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); see also In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984) ("The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding."). However, "[w]here, as here, 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." In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (citation omitted). Because the determinative factor is the parent's ability to care for the child at the time of the hearing, "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 232). Under such circumstances, "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. However, the prior adjudication of neglect, standing alone, does not support termination based on neglect. "The trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect." Id. at 715, 319 S.E.2d at 232 (citation omitted). Thus, a trial court may terminate parental rights based upon prior neglect of the juvenile only if "the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [his or] her parents." In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (citing Ballard, 311 N.C. at 716, 319 S.E.2d at 232).
In its order, the trial court made 139 findings of fact supporting its conclusion to terminate respondents' parental rights. Of these findings, respondent-mother challenges two that pertain to the trial court's ultimate determination regarding neglect as a ground for termination. The challenged findings are:
123. That the respondent parents have neglected the juveniles by their continued failure to comply with court-ordered treatment services; visit consistently with their children; establish safe and stable housing; or otherwise demonstrate any interest or willingness to provide for the needs of their children.
. . .
127. That the [c]ourt, based upon the foregoing findings of fact, will conclude as a matter of law that the grounds exist upon which to terminate the parental rights of the respondent parents . . . specifically that:
Despite challenging these ultimate findings of fact, respondent-mother does not dispute findings of fact numbers 96 through 120, regarding respondents' inability to maintain suitable housing; failure to address substance abuse issues; noncompliance with random drug testing; failure to complete court-ordered parenting classes; lack of financial support for their children; inconsistent visitation with their children; absence from court proceedings; and failure to comply with recommendations following court-ordered psychological evaluations. Most of these issues were addressed by the court on prior occasions or were otherwise agreed upon by the parents in mediated case plans. Findings of fact 96 through 120, in turn, support the ultimate findings of fact made in numbers 123 and 127. Accordingly, we reject respondent-mother's challenges to findings of fact 123 and 127(a).a. That the mother and father have neglected the children and the children are neglected children within the meaning of [N.C. Gen. Stat. §] 7B-1111(a)(1)[.]
Respondent-mother also argues that finding of fact number 127 is actually a conclusion of law. To the extent that this finding is more appropriately deemed a conclusion of law, we treat it as such. See In re M.R.D.C., 166 N.C. App. 693, 697, 603 S.E.2d 890, 893 (2004), disc. review denied, 359 N.C. 321, 611 S.E.2d 413-14 (2005).
Additionally, respondents both argue that the evidence does not support neglect as a ground for termination because the trial court did not adequately consider evidence of their changed circumstances. Specifically, respondent-mother argues that at the time of the hearing, she had completed parenting classes, maintained a home, visited the children, completed a F.I.R.S.T. assessment and psychological evaluation, and was no longer taking methadone. Respondent-father similarly argues that he completed parenting classes, obtained a F.I.R.S.T. assessment, and maintained housing until the hearing. Respondent-father claims that he did all of this despite the fact that he was incarcerated when Tommy was removed from the home. He argues that the court-ordered services were not related to the reason for removal, and he appears to suggest that his compliance with the services therefore has no bearing on whether future neglect is likely. We are not persuaded by any of respondents' arguments.
First, we note that many of respondents' arguments overlook the unchallenged findings of fact that relate to their failure to address issues regarding housing, parenting classes, and substance abuse. The undisputed findings of fact establish that although respondents maintained a residence for a year and a half, their social worker had not approved that residence. Respondents' social worker was unable to see the inside of the house, despite several attempts at conducting a home visit, but felt that it was below minimum county standards based on its outside appearance. To the extent that respondents presented evidence that the residence was previously deemed appropriate by YFS, any discrepancies in the evidence would have been for the trial court to resolve as the finder of fact. See, e.g., In re Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985) (explaining that "[t]he trial judge determines the weight to be given the testimony . . . [and] he alone determines which inferences to draw and which to reject"). Furthermore, it is undisputed that respondents were evicted from this residence prior to the termination hearing.
The unchallenged findings of fact also establish that respondents merely completed online parenting classes, despite being warned by district courts in two counties that such classes were not sufficient. Both parents were given multiple opportunities to complete approved in-person classes but failed to do so. Additionally, the undisputed findings demonstrate that the parents failed to complete court-ordered services related to substance abuse. Both parents completed F.I.R.S.T. assessments but failed to comply with recommendations for treatment and to submit to random drug testing. Lastly, the undisputed findings of fact show that respondents failed to consistently visit their children—to such an extent that visitation was twice suspended—and that the trial court was unimpressed by their explanations. Respondents apparently did not expect the court to reject their excuses. However, it is the trial court's duty to judge the credibility of the witnesses and weigh the evidence. See id.
Contrary to their assertions, the findings of fact establish that respondents failed to maintain suitable housing, failed to provide support for their children, failed to consistently visit them, and failed to consistently attend court hearings in their juvenile cases. Additionally, the findings establish that respondents failed to comply with several court-ordered services, including parenting classes and substance abuse treatment. This evidence supports the trial court's finding that "neglect is likely to continue for the foreseeable future[.]" Regardless of the reason that Tommy was removed from the home, respondent-father's actions and omissions during the pendency of the case are sufficient to support a finding of future neglect. Accordingly, we hold that the trial court did not err in terminating respondents' parental rights based upon the ground of neglect.
B. Best Interests of the Juveniles
We next address respondent-mother's challenge to the trial court's dispositional decision that termination was in the juveniles' best interests.
After an adjudication that one or more grounds for terminating a parent's rights exist, the court must determine whether termination is in the juvenile's best interests by considering the following criteria:
(1) The age of the juvenile.N.C. Gen. Stat. § 7B-1110(a). "We review the trial court's decision to terminate parental rights for abuse of discretion." In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002) (citation omitted). "Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Roache, 358 N.C. 243, 284, 595 S.E.2d 381, 408 (2004) (quotation and citation omitted).
(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.
Based on our review of the order, it is clear that the trial court made findings addressing each of the factors enumerated in N.C. Gen. Stat. § 7B-1110(a). Respondent-mother, however, challenges two of the trial court's findings of fact. First, she challenges finding of fact number 136, in which the trial court found "[t]hat the [c]ourt has sanctioned a permanent plan of adoption as in the best interest of the juveniles." Respondent-mother argues that this is not an "independent determination" that termination of her parental rights "will aid in the accomplishment of the permanent plan for the children" or that termination is in their best interests, but rather shows that the trial court erroneously relied on a prior determination regarding their permanent plan. Respondent-mother, however, overlooks finding of fact number 138, in which the court found "[t]hat the termination of the parental rights of [respondents] would aid in the accomplishment of the juveniles' permanent plan." This finding specifically addresses the issue of whether termination "will aid in the accomplishment of the permanent plan" for the children, as required by N.C. Gen. Stat. § 7B-1110(a)(3). Therefore, we reject this argument.
Respondent-mother also challenges finding of fact number 132, in which the trial court addressed the bond between the parents and the juveniles and found
[t]hat there is no evidence of a bond or relationship between the respondent parents and the juveniles, in that the parents have not visited with the juveniles since January 2015; and in that the parents had visited inconsistently with the juveniles prior to January 2015. Even prior to the [c]ourt's suspension of the parents' visitation, the respondent parents willfully failed to visit the children often for extended periods of time.Respondent-mother claims that the trial court erroneously emphasized the behavior of respondents instead of determining whether there is a bond between parent and child. We are not persuaded. First, we note that respondent-mother does not contend that finding of fact 132 lacks evidentiary support. Indeed, this finding is more or less a reiteration of the uncontested findings pertaining to visitation that were made in the adjudicatory portion of the order. Furthermore, respondent-mother cites no legal authority to support her claim that the parents' lack of visitation is not relevant to the bond between parent and child. To the contrary, the bond between parent and child would be evidenced at visitations, and given the parents' inconsistent history of visitation, the trial court was well within its discretion to conclude that there is no evidence of any such bond. Therefore, we reject respondent-mother's argument and conclude that the trial court did not err in determining that termination of her parental rights was in the juveniles' best interests.
III. Conclusion
The trial court's findings of fact supported its decision to terminate respondents' parental rights based upon the ground of neglect, pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). Furthermore, there is nothing to suggest that the trial court did not fully consider all of the factors outlined in N.C. Gen. Stat. § 7B-1110 in determining the best interests of the minor children. Accordingly, we find no abuse of discretion in the court's disposition, and therefore, affirm the trial court's order terminating respondents' parental rights to Tommy and Sam.
AFFIRMED.
Judges STROUD and INMAN concur.
Report per Rule 30(e).