Opinion
No. COA15-930
04-05-2016
IN THE MATTER OF: D.J.D., R.M.D. & J.J.D.
PERRY, BUNDY, PLYLER & LONG, LLP, by Natalie J. Broadway and Dale Ann Plyler, for petitioner-appellee Union County Department of Social Services. J. Thomas Diepenbrock for respondent-appellant father. K&L Gates LLP, by Leah D'Aurora Richardson, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Union County, Nos. 13 JT 96-98 Appeal by respondent from order entered 29 May 2015 by Judge William F. Helms, III, in Union County District Court. Heard in the Court of Appeals 7 March 2016. PERRY, BUNDY, PLYLER & LONG, LLP, by Natalie J. Broadway and Dale Ann Plyler, for petitioner-appellee Union County Department of Social Services. J. Thomas Diepenbrock for respondent-appellant father. K&L Gates LLP, by Leah D'Aurora Richardson, for guardian ad litem. ELMORE, Judge.
Respondent, the father of juveniles D.J.D., R.M.D., and J.J.D. (David, Rose, and Jason, respectively) appeals from an order terminating his parental rights. After careful review, we affirm.
We use these pseudonyms to protect the identities of the juveniles and promote ease of reading.
I. Background
On 16 July 2013, the Union County Department of Social Services (DSS) received a Child Protective Services report alleging that an older sibling of the juveniles, L.K.S. (Lisa), had been sexually abused by respondent. Upon investigation, Lisa told a social worker that respondent had vaginal and anal intercourse with her on several occasions. Subsequently, Rose told a social worker that an adult male member of the household had penetrated her vagina with his finger. The juveniles' mother confirmed to the social worker that Lisa had told her of the sexual abuse, and that it had begun when she was four years old.
Respondent is not the father of Lisa, and neither Lisa nor her father are parties to this appeal.
The mother of the juveniles relinquished her parental rights and is not a party to this appeal.
On 17 July 2013, DSS filed petitions alleging that Rose was an abused, neglected, and dependent juvenile, and that David and Jason were neglected and dependent juveniles. DSS obtained non-secure custody of the juveniles that same day. Several months later, on 22 September 2013, respondent was arrested on sexual offense charges based on Lisa's allegations.
Adjudication and disposition hearings were conducted on 27 November 2013 in Union County District Court. The trial court concluded that Lisa was an abused, neglected, and dependent juvenile, and that David, Rose, and Jason were neglected and dependent juveniles. At disposition, DSS established a permanent plan of reunification. The trial court found, however, that reunification efforts would be "futile or inconsistent with the juveniles' safety and need for a safe, permanent home within a reasonable time," and that full cooperation in the plan of care for the juveniles is required before reunification can be achieved. The trial court concluded that it was in the juveniles' best interest to remain in the legal custody of DSS with placement in foster care, and ordered respondent to submit to a parental capacity evaluation before relieving DSS of further reunification efforts.
The first permanency planning hearing was held on 11 December 2013. The trial court set the permanent plan for the juveniles as guardianship with a relative or court-approved caretaker with a concurrent plan of adoption. The court also ordered respondent to complete a parental capacity evaluation that had been rescheduled for January 2014. After a subsequent hearing on 14 May 2014, however, the court found that respondent was not making progress toward his case plan and relieved DSS from making further efforts to reunify the juveniles with respondent.
The juveniles were placed in foster care on 22 August 2014. After the final permanency planning hearing on 24 September 2014, the court concluded that adoption was the best plan to achieve a safe, permanent home for the juveniles. DSS filed a petition to terminate respondent's parental rights, alleging that the juveniles were neglected, that respondent failed to pay a reasonable portion of the cost of care for six months, and that the juveniles were dependent. On 29 May 2015, the trial court terminated respondent's parental rights on the grounds of neglect and dependency. Respondent appeals.
II. Discussion
Respondent argues that the trial court erred in concluding that grounds existed to terminate his parental rights to David, Rose, and Jason. Specifically, respondent claims that (1) the conclusion of neglect was based solely on findings that he abused Lisa, and (2) the finding that neglect would likely continue if the juveniles were returned to his home and care was not supported by clear and convincing evidence. We disagree.
"The standard for review in termination of parental rights cases is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law." In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984).
N.C. Gen. Stat. § 7B-1111 (2015) sets forth the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990) (citing re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984)). Here, the trial court concluded that grounds existed to terminate respondent's parental rights based on neglect. N.C. Gen. Stat. § 7B-1111(a)(1) (2015). A "neglected juvenile" is defined as one
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. In 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.N.C. Gen. Stat. § 7B-101(15) (2015) (emphasis added). "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) (citation omitted). Where, as here, a child has been removed from the parent's custody before the termination hearing and the petitioner presents evidence of prior neglect, then "[t]he 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." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984) (citation omitted). When the child does not reside in the home, the determination of whether the child is neglected "must of necessity be predictive in nature, as the trial court must assess whether there is a substantial risk of future abuse or neglect of a child based on the historical facts of the case." In re McLean, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999).
In support of his argument, respondent relies on In re J.C.B., ___ N.C. App. ___, 757 S.E.2d 487 (May 6, 2014) (COA13-1112), disc. review denied, 367 N.C. 524, 762 S.E.2d 313 (Aug. 9, 2014), where we held that the respondent-father's alleged abuse of a juvenile, R.R.N., in his home did not, by itself, support a conclusion that the other juveniles in the home, J.C.B., C.R.R., and H.F.R., were neglected. Id. at ___, 757 S.E.2d at 489. In reaching our decision, we explained that "[t]he trial court made virtually no findings of fact regarding J.C.B., C.R.R., or H.F.R., and wholly failed to make any finding of fact that J.C.B., C.R.R., and H.F.R. were either abused themselves or were aware of respondent-father's inappropriate relationship with R.R.N." Id. Nor did the trial court "make any findings of fact regarding other factors that would support a conclusion that the abuse would be repeated." Id. at ___, 757 S.E.2d at 489-90. We concluded, therefore, that the trial court's findings did not support its conclusion that the "respondent-father's conduct created a 'substantial risk' that abuse or neglect of J.C.B., C.R.R., and H.F.R. might occur." Id. at ___, 757 S.E.2d at 490 (citing In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)).
Unlike In re J.C.B., however, here the trial court's conclusion that David, Rose, and Jason were neglected was not solely based on its finding that respondent had sexually abused Lisa. In its order terminating respondent's parental rights, the trial court made the following findings of fact relevant to neglect:
16. The facts which constitute grounds for termination the parents' [sic] rights of [respondent] in the juveniles, [David, Rose, and Jason] are as follows:These findings, which are unchallenged and binding on appeal, Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991), show not only the nature of respondent's repeated sexual abuse against Lisa, but its adverse effect on the other juveniles given that David, Rose, and Jason were present in the same room when the abuse occurred.
A. [Respondent] committed abuse upon a juvenile, [Lisa], who is a juvenile who lived in the home with the juveniles [David, Rose, and Jason], by committing the following acts upon her:
i. Indecent Liberties as provided in G.S. 14-202.1.
ii. First Degree Rape as provided in G.S. 14-27.2.
iii. First Degree Sexual Offense as provided in G.S. 14-27.4(A).
B. [David, Rose, and Jason] were in the home when their sibling [Lisa] was sexually assaulted by [respondent] on several occasions. These assaults included but are not limited to: [Respondent] touched [Lisa's] vagina, put his penis in her vagina, licked her vagina, and/or put his penis in her anus.
C. [David, Rose, and Jason] shared a bedroom with [Lisa]. On several occasions while the other children were present [respondent] touched [Lisa's] vagina, put his penis in her vagina, licked her vagina, and/or put his penis in her anus.
D. [Respondent] has neglected the juveniles [David, Rose, and Jason] by acts of sexual assault against the juvenile [Lisa] who was residing in the home at such time that [David, Rose, and Jason] resided in [respondent's] home.
i. It is relevant that the juveniles lived in a home where another juvenile has been subjected to abuse and neglect by an adult who regularly lived in the home, to wit: [respondent].
The trial court also considered evidence of changed conditions and the probability of a repetition of neglect:
ii. It is highly likely that abuse and neglect of the children will continue for the foreseeable future if they are returned to the home.Contrary to respondent's assertion, the court's finding that abuse and neglect are likely to continue if the juveniles are returned to the home is supported by clear and convincing evidence. The record shows that respondent failed to complete his case plan either prior to or since his arrest, and DSS ceased all reunification efforts on 14 May 2014. At the time of the termination hearing, respondent was incarcerated, serving a sentence of fifty to seventy years in prison for sexual offenses committed against Lisa. DSS had not been in contact with respondent since he was sentenced on 12 February 2015, and the juveniles have had no contact with respondent since 19 July 2013. Moreover, based on the historical facts of this case, in which respondent sexually abused Lisa on multiple occasions over several years, including occasions when the juveniles were sleeping in the bed beside her, the trial court did not err in finding that there was a strong likelihood of a repetition of neglect should respondent be released from prison and the juveniles be returned to his care. We conclude, therefore, that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) to terminate respondent's parental rights.
iii. There is a reasonable probability that the neglect will continue if the children are returned to [respondent's] care.
iv. [Respondent] has not made adequate progress under the circumstances in correcting the conditions that led the children to be removed from the home.
We further reject respondent's argument that, in light of In re Shermer, 156 N.C. App. 281, 288, 576 S.E.2d 403, 408 (2003), DSS did not offer respondent sufficient time and assistance to complete his case plan—specifically, the parenting capacity evaluation. The record shows that respondent had three opportunities to complete the evaluation: first, on 11 September 2013; second, on 11 November 2013; and third, in January 2014 . The first evaluation was scheduled twelve days prior to respondent's arrest, and thereafter, the evaluator was willing to go to the jail to complete the evaluation. There is no indication, however, that respondent ever completed the evaluation. Respondent also ignores the fact that since his incarceration began on 22 September 2013, DSS visited with respondent on a monthly basis until reunification efforts ceased on 14 May 2014.
Respondent also argues that the trial court erred in concluding that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(6) to terminate his parental rights. However, because we conclude that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) to support the trial court's order, we need not address the remaining grounds found by the trial court to support termination. Taylor, 97 N.C. App. at 64, 387 S.E.2d at 233-34.
III. Conclusion
The trial court did not err in terminating respondent's parental rights to the juveniles David, Rose, and Jason. Accordingly, we affirm the trial court's order.
AFFIRMED.
Judges GEER and DIETZ concur.
Report per Rule 30(e).