Opinion
No. COA13–27.
2013-07-2
In the Matter of A.G. & B.B.
Office of Wake County Attorney, by Deputy County Attorney Roger A. Askew, for Wake County Human Services petitioner-appellee. Robinson, Bradshaw & Hinson, P.A., by Ty E. Shaffer, for guardian ad litem appellee.
Appeal by respondents from order entered 26 October 2012 by Judge Margaret Eagles in Wake County District Court. Heard in the Court of Appeals 4 June 2013. Office of Wake County Attorney, by Deputy County Attorney Roger A. Askew, for Wake County Human Services petitioner-appellee. Robinson, Bradshaw & Hinson, P.A., by Ty E. Shaffer, for guardian ad litem appellee.
Anna S. Lucas for respondent-mother appellant.
Levine & Stewart, by James E. Tanner III, for respondent-father appellant.
McCULLOUGH, Judge.
A.G. and B.B. (collectively, “the juveniles”) share a common mother (“respondent-mother”) who appeals from an order terminating her parental rights to the juveniles. B.B.'s father (“respondent-father”) also appeals from the same order terminating his parental rights to B.B. A.G.'s father did not participate in the proceedings and does not appeal from the termination of his parental rights to A.G.
On 18 October 2010, a juvenile petition was filed by Wake County Human Services (“WCHS”) alleging the juveniles were neglected. On the same date, WCHS took non-secure custody of the juveniles. On 15 December 2010, the juveniles were adjudicated as neglected juveniles in that the children did not receive proper care and supervision and lived in an environment injurious to their welfare in light of numerous reports of serious domestic violence between respondent-mother and respondent-father and respondent-mother's mental health issues. On 5 February 2012, the trial court ceased reunification efforts as to all parents of the juveniles and changed the permanent plan for the juveniles to adoption.
On 22 February 2012, WCHS filed a motion to terminate the parental rights of all parents. The trial court conducted hearings on 30 August 2012 and 25 September 2012, and on 26 October 2012, the trial court filed the subject order terminating the parental rights of respondent-mother and respondent-father pursuant to both N.C. Gen.Stat. § 7B–1111(a)(1) (2011) (neglect) and N.C. Gen.Stat. § 7B–1111(a)(2) (failure to make reasonable progress in correcting the conditions that led to the removal of the children and their placement in foster care).
The standard of 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. We then consider, based on the grounds found for termination, whether the trial court abused its discretion in finding termination to be in the best interest of the child.
In re Shepard, 162 N.C.App. 215, 221–22, 591 S.E.2d 1, 6 (2004) (internal quotation marks and citations omitted). Here, both respondent-mother and respondent-father challenge the sufficiency of the evidence and the findings of fact to support the trial court's conclusion that grounds exist to terminate their parental rights. Neither respondent-mother nor respondent-father challenge the trial court's exercise of its discretion to terminate their parental rights based upon the grounds found by the trial court.
We first consider the trial court's determination to terminate parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(1). To terminate parental rights on this ground, the trial court must conclude that “[t]he parent has abused or neglected the juvenile.” N.C. Gen.Stat. § 7B–1111(a)(1). A parent neglects a child by failing to provide proper care, supervision, discipline or a safe environment or by abandoning the child. N.C. Gen.Stat. § 7B–101(15) (2011). “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). “Termination of parental rights for neglect may not be based solely on past conditions which no longer exist.” Id. While the trial court may consider evidence of a prior adjudication of neglect, “[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” if the child is returned to the parent's care. In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984).
In the present case, both respondent-mother and respondent-father contend that the evidence is insufficient to support a finding and conclusion that there is a substantial likelihood of a repetition of neglect. Both argue that since they have not been in contact with each other since the Fall of 2011, the chronic domestic violence between them, which formed the basis for the prior adjudication of neglect, no longer exists.
Respondent-mother specifically argues that there is no evidence of domestic violence after the children were removed from the home and placed in foster care, except for one episode of domestic violence occurring in May of 2011, and that there is no evidence of domestic violence following this May 2011 incident. She contends the trial court's findings that (1) the pattern of domestic violence continued for another year after the children came into foster care, (2) she has “unmet mental health needs,” (3) she has made “minimal progress” in therapy, (4) she has substance abuse problems, and (5) this pattern of neglect would probably continue if the juveniles were placed in her care, are all unsupported by the evidence.
Respondent-father specifically challenges finding of fact number 48, in which the trial court found that
in light of the pattern of domestic violence and substance abuse that dates back to 2007, the adjudication of neglect based primarily on domestic violence, the repeated incidents between him and the mother, and the father's failure to make any progress in complying with the orders of the Court, a repetition of the pattern of neglect is probable if the child were placed in his care.
Respondent-father contends that there is no competent evidence, other than hearsay in the form of statements made by respondent-mother to a social worker, that the May 2011 incident referenced by respondent-mother ever occurred and that there is no evidence of any domestic violence between the parents after the juveniles were placed in foster care. Respondent-father further contends that there is no evidence indicating that a repetition of the pattern of domestic violence was probable as to him. He submits that the domestic violence is not likely to be repeated because he took action to end the pattern of domestic violence by obtaining a domestic violence protective order (“DVPO”) against respondent-mother.
Findings of fact are binding on appeal when there is some evidence in the record to support them, even though there may be evidence to support contrary findings. In re Montgomery, 311 N.C. 101, 110–11, 316 S.E.2d 246, 252–53 (1984). Findings of fact are also presumed to be supported by competent evidence and are binding on appeal if they are not challenged by the appellant. In re J.K.C., ––– N.C.App. ––––, ––––, 721 S.E.2d 264, 268 (2012). In a termination of parental rights case, the trial court's findings of fact will be overturned only if the appellant can show a lack of clear, cogent, and convincing competent evidence to support those findings. In re Blackburn, 142 N.C.App. 607, 612, 543 S.E .2d 906, 909 (2001). In the present case, we find ample evidentiary support for the trial court's findings challenged by respondent-mother and respondent-father, specifically in the form of testimony presented at the hearing, documentary exhibits, and unchallenged findings of fact.
As to the termination of respondent-mother's parental rights, Allison Thompson (“Thompson”), a social worker supervisor with WCHS, testified that subsequent to the removal of the children from the home, respondent-mother reported that in April 2011, respondent-father punched her in the stomach. Thompson also testified that respondent-mother reported another incident in May of 2011, at which time she was residing in a shelter for victims of domestic violence “to keep herself safe” from respondent-father. Hearsay statements made to a social worker by a parent are admissible against the parent making the statement as an admission of a party opponent in a termination of parental rights proceeding. In re S.W., 175 N.C.App. 719, 723, 625 S.E.2d 594, 596–97,disc. review denied,360 N.C. 534, 635 S.E.2d 59 (2006). Thompson further testified that, because of an altercation involving respondent-mother at the Cary office of WCHS in February 2011 and due to statements made by respondent-mother to Social Worker Danielle Turnage (“Turnage”), Thompson obtained a “no trespassing” order against respondent-mother and arranged a security escort for Turnage at the termination of parental rights hearing.
According to respondent-mother's certified criminal record received into evidence, at the time of the termination of parental rights hearing on 30 August 2012, respondent-mother had the following pending criminal charges: one count of felony stalking, four counts of violating the DVPO, three counts of misdemeanor harassing phone calls, and one count of misdemeanor simple assault. Social Worker Turnage testified that the complainants or victims in all of these charges, originating out of incidents occurring in October and November 2011—approximately one year after the juveniles had been removed from the home—were respondent-father and his girlfriend. Respondent-mother does not challenge the trial court's finding of fact that from mid-November 2011 to mid-January 2012, she was incarcerated on these charges, during which time she did not visit with the juveniles, participate in family therapy, or engage in dialectical behavioral therapy (“DBT”).
Respondent-mother's therapist at the time of the termination of parental rights proceeding testified that respondent-mother had made “minimal” progress during the two months he had been treating her prior to the termination of parental rights hearing. Social Worker Turnage testified that respondent-mother did not complete her individual DBT and that at the time of the hearing, respondent-mother was not involved in individual DBT. Turnage also testified that she had a conversation with respondent-mother after respondent-mother tested positive for cocaine in October 2011, during which respondent-mother told Turnage that respondent-mother smoked “K2, or spice” to “feel high” and that she regularly consumed alcohol to help her sleep. Turnage testified that respondent-mother expressed to Turnage that she was unaware she had previously been diagnosed as having an alcohol dependence problem.
Respondent-father does not contest the trial court's findings regarding his non-compliance with elements of his case plan as ordered by the court. Respondent-father's case plan required him to: (1) visit consistently with his child; (2) obtain and maintain employment and housing to meet the needs of his child; (3) complete a psychological evaluation and follow the recommendations made, including engaging in individual therapy and anger management; (4) complete a positive parenting class; and (5) maintain regular contact with the WCHS social worker. The trial court's findings indicate that although respondent-father had visited consistently with his child, he did not: complete a positive parenting class; complete anger management classes; attend all individual and group therapy sessions as recommended by his psychological evaluation, having attended only one fourth of the group sessions and two of the individual sessions recommended by the evaluation and none after May 2011; maintain stable housing, having moved from place to place with friends and at one time was living in a hotel; and maintain contact with the WCHS social worker. Of particular concern is that, considering his past history of assaultive behavior, respondent-father failed to complete anger management classes and other recommended aspects of the psychological evaluation. Based upon these facts, we conclude the trial court properly found a probability that the pattern of neglect is likely to be repeated if B.B. were placed in respondent-father's care. See In re Davis, 116 N.C.App. 409, 413–14, 448 S.E.2d 303, 306 (1994) (upholding finding of a probability of repetition of neglect where the respondent failed to obtain counseling, maintain a stable home and employment, and attend parenting classes).
We hold that the trial court's findings of fact are supported by clear, cogent and convincing competent evidence and that the trial court's conclusion of law that respondents have neglected the children is supported by the findings of fact. The record evidence clearly demonstrates that neither respondent-mother nor respondent-father sufficiently attempted to correct the conditions that led to the prior findings and adjudication of neglect. In light of the history of neglect by both respondent-mother and respondent-father, the lack of changed conditions, and the probability of a repetition of neglect in light of both respondents' failure to take the proper steps to correct the conditions that led to the juveniles' adjudication of neglect, we affirm the termination of parental rights on that ground. Because we uphold the trial court's conclusion as to the existence of one ground, it is unnecessary to consider other grounds determined by the trial court to exist. In re P.L.P., 173 N.C.App. 1, 8, 618 S.E.2d 241, 246 (2005).
Affirmed. Judges ELMORE and DAVIS concur.
Report per Rule 30(e).