Opinion
No. COA16-473
11-01-2016
IN THE MATTER OF: A.J.P.
Jennifer G. Cooke for petitioner-appellee New Hanover County Department of Social Services. J. Thomas Diepenbrock for respondent-appellant mother. Administrative Office of the Courts, by GAL Appellate Counsel Matthew D. Wunsche, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. New Hanover County, No. 14 JT 179 Appeal by respondent from orders entered 24 August 2015 and 25 February 2016 by Judge J.H. Corpening, II, in New Hanover County District Court. Heard in the Court of Appeals 10 October 2016. Jennifer G. Cooke for petitioner-appellee New Hanover County Department of Social Services. J. Thomas Diepenbrock for respondent-appellant mother. Administrative Office of the Courts, by GAL Appellate Counsel Matthew D. Wunsche, for guardian ad litem. INMAN, Judge.
Respondent-mother ("respondent") appeals from an order ceasing reunification efforts and an order terminating her parental rights to her minor child A.J.P. ("Aaron"). The father is not a party to this appeal. We affirm the trial court's orders.
A pseudonym is used to protect the identity of the juvenile and for ease of reading.
Aaron was born in December 2013. On 22 July 2014, the New Hanover County Department of Social Services ("DSS") received a report that respondent was using drugs and arguing with her roommate, resulting in respondent being asked to leave the home. DSS assisted respondent with applying to local shelters. Respondent and Aaron were accepted at The Good Shepherd shelter on 24 July 2014. The next day, respondent violated shelter rules by leaving with Aaron after curfew. Respondent was not allowed back at the shelter due to her previous behaviors at the shelter and her violation of curfew after being warned. Other local shelters would not take respondent for various reasons.
DSS obtained nonsecure custody of Aaron on 26 July 2014. On 28 July 2014, DSS filed a petition alleging that Aaron was neglected and dependent due to respondent's mental health and substance abuse issues and her homelessness and inability to provide a safe home for Aaron. Following Aaron's placement with DSS, respondent went to stay with a friend. Respondent claims she feigned psychiatric symptoms in front of the friend so the friend would get her psychiatric help, which would provide her a place to stay. Respondent was admitted to the Behavioral Unit of New Hanover Regional Medical Center for two to three weeks. During her stay at the hospital, respondent showed disregard for staff and peers, crafted utensils that could be used as weapons and hid them in her room, destroyed hospital property, and feigned swallowing her medications. A short time after leaving the hospital, respondent lived at various places for short periods of time until obtaining a six-month lease on a furnished apartment in November 2014.
On 10 September 2014, DSS dismissed the petition it filed 28 July 2014 because it was not properly verified. DSS filed a new petition the same day alleging Aaron was a neglected juvenile, and the trial court held a hearing on the matter that day. The parties stipulated to the allegations of neglect in the new petition, and the trial court adjudicated Aaron a neglected juvenile. The court ordered respondent to participate in a psychological evaluation and follow any recommendations, submit to a parenting assessment and follow any recommendations, submit to random drug screens, and maintain employment and suitable housing.
Following a permanency planning review hearing, the trial court entered an order on 24 August 2015 changing the permanent plan from reunification to adoption. Respondent filed a notice to preserve her right to appeal on 2 September 2015. On 17 September 2015, DSS filed a petition to terminate parental rights, alleging as grounds to terminate respondent's parental rights that: (1) respondent neglected the juvenile; and (2) respondent willfully left the juvenile in foster care or placement outside of the home for more than twelve months without showing reasonable progress in correcting the conditions that led to the removal of the juvenile. See N.C. Gen. Stat. § 7B-1111(a)(1)-(2) (2015). After a hearing on the petition, the trial court entered an order on 25 February 2016 terminating respondent's parental rights to Aaron after adjudicating the existence of both grounds alleged in DSS's petition. Respondent filed notice of appeal on 29 February 2016.
Ceasing Reunification Efforts
On appeal from the permanency planning review order, respondent contends that the trial court erred in ceasing reunification efforts with her. We disagree.
This Court reviews orders ceasing 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). "Where the trial court's findings are supported by competent evidence, they are binding on appeal, even if there is evidence which would support a finding to the contrary." In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004).
At the time of the permanency planning review hearing, N.C. Gen. Stat. § 7B-507 provided, in relevant part:
(b) In any order placing a juvenile in the custody or placement responsibility of a county department of social services, whether an order for continued nonsecure custody, a dispositional order, or a review order, 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:N.C. Gen. Stat. § 7B-507(b)(1) (2013).
(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 . . . .
In its order ceasing reunification efforts, the trial court ultimately found "[t]hat [DSS] should be allowed to cease reunification efforts with [respondent]. Such efforts would be futile and inconsistent with the Juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time." In support of this ultimate finding of fact, the court found:
7. That [respondent] has failed to adequately address the concerns that brought the Juvenile into care. She has failed to consistently maintain employment and independent housing which were the cause of the Juvenile's initial removal from his mother. She has changed employment three times within the last month. She is currently self-employed. She has created a domestic cleaning company . . . [and] has one client at this time. [Respondent] chose to vacate her leased apartment located at 312-B Walnut Street, Wilmington, North Carolina after seven months with five additional months pre-paid due to alleged sexual advances made by the landlord. She currently vacillates between three addresses [in New Hanover and Brunswick Counties]. . . .Respondent first argues that finding seven is not supported by competent evidence. However, rather than identifying any portion of the finding as lacking in evidentiary support, respondent proceeds in her brief to discuss evidence that was not included in the trial court's findings. Respondent therefore abandoned her challenge to finding seven as not supported by competent evidence. See N.C.R. App. P. 28(a) ("Issues not presented and discussed in a party's brief are deemed abandoned.").
Respondent further contends that finding seven does not support the trial court's finding that reunification would be futile and inconsistent with Aaron's health, safety, and need for a safe, permanent home within a reasonable period of time.
In this case, respondent previously stipulated to the fact that Aaron was a neglected juvenile based in part on respondent's failure to provide him with stable housing. In its order ceasing reunification efforts, the trial court specifically found that respondent "failed to consistently maintain employment and independent housing which were the cause of the Juvenile's initial removal from his mother," and proceeded to detail respondent's significant turnover in housing and employment. The court further found that, as of the time of the permanency planning review hearing, respondent owned a cleaning company that only had one client, and she was "vacillat[ing] between three addresses" in New Hanover and Brunswick Counties. These findings demonstrate that respondent had not successfully dealt with the issues leading to Aaron's removal from the home and supported the trial court's ultimate finding that reunification efforts "would be futile and inconsistent with the Juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time." In light of these findings, the trial court did not err in concluding that reunification efforts should cease. The trial court's order ceasing reunification efforts is affirmed.
Grounds to Terminate Parental Rights
Respondent next contends that the trial court erred in finding that grounds existed to terminate her parental rights. Again, we disagree.
At the adjudicatory stage, the party petitioning for the termination must show by clear, cogent, and convincing evidence that grounds authorizing the termination of parental rights exist. If the trial court concludes that the petitioner has proven grounds for termination, this Court must determine on appeal whether the court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law. Factual findings that are supported by the evidence are binding on appeal, even though there may be evidence to the contrary. Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.In re L.A.B., 178 N.C. App. 295, 298-99, 631 S.E.2d 61, 64 (2006) (internal quotation marks, citations, and alteration omitted).
Under N.C. Gen. Stat. § 7B-1111(a), the trial court need only find that one statutory ground for termination exists in order to proceed to the dispositional phase and decide if termination is in the child's best interests.
Respondent first challenges as unsupported by clear and convincing evidence the trial court's statement in finding eleven of the termination order that respondent "has failed to demonstrate stability as she has not maintained independent suitable housing." In support of this challenge, respondent points to evidence that she had been residing in the same place from 12 September 2015 until the termination hearing in early January 2016.
The trial court found that respondent resided in no fewer than seven different residences during an eleven-month period starting September 2014. At the time of the termination hearing, respondent lived in a home with her fiancé and another man who owned the home. A social worker who testified at the hearing stated that she had received conflicting answers from respondent as to when she began living at her current residence. The social worker stated that she ran criminal background checks on the occupants of the home and found that respondent's fiancé had two convictions of driving while impaired, though those convictions had occurred at least ten years prior. She also found that the owner of the home had been convicted for trespassing and twice for resisting a public officer, and that he had recently been arrested for failure to appear in court. The social worker stated her belief that these convictions "would potentially be something, yes, that would make the home not feasible" and that the home "wouldn't be something we would approve at this time as a place for the child to live." Thus, even granting as true respondent's claim that she maintained the same residence for nearly four months as of the time of the termination hearing, there was evidence in the record that respondent still lacked independent housing that was suitable for a child. This evidence, in addition to evidence of respondent's frequent relocations after she first came in contact with DSS, constituted clear and convincing evidence in support of the trial court's finding that respondent "has not maintained independent suitable housing."
Respondent next contends that the trial court erred in finding that neglect existed as grounds to terminate her parental rights.
N.C. Gen. Stat. § 7B-1111(a)(1) (2015) permits a trial court to terminate parental rights upon finding that the parent has neglected the juvenile. A neglected juvenile is, in part, one "who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; . . . or who lives in an environment injurious to the juvenile's welfare." N.C. Gen. Stat. § 7B-101(15) (2015). "If there is no evidence of neglect at the time of the termination proceeding . . . parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [his] parents." In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).
We first note that the trial court's statement in finding sixteen that the "probability of repetition of neglect is high" is actually a conclusion of law, and we will treat it as such in our review of the court's termination order. See In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675-76 (1997).
In the present case, the trial court found that the same issues leading to Aaron's removal from respondent's care and to entry of the order ceasing reunification efforts persisted at the time of the termination hearing, namely issues regarding respondent's lack of stable employment and housing. In addition to the findings detailed above regarding respondent's unstable housing, the trial court also found:
13. That prior to becoming self-employed the Respondent-Mother was unable to maintain employment to consistently provide stable housing. . . . Since [DSS] has been involved, [respondent] has been employed by Hiro's Japanese Restaurant, a publicity company as a Vietnam War Memorial pledge recruiter, a waitress at Louie's pizza restaurant and a laborer with Vision Hardwood Flooring. She is currently self-employed cleaning homes. . . . [Respondent] has failed to produce proof of income to [DSS] or Guardian ad Litem. . . .Moreover, the court found that, despite respondent's completion of a parenting program, DSS continued to have concerns regarding respondent's parenting skills:
10. . . . Respondent-Mother had difficulty receiving feedback regarding the care of [Aaron]. At approximately four months old, she attempted to make [Aaron] walk by holding the back of his shirt. She refused to keep the child awake during visitation which had been recommended by a medical professional to assist with a structured sleeping schedule. . . . During visits, she insisted on feeding [Aaron] various foods such as avocado and a "soy based protein" drink despite his dietary restrictions and his age. [Respondent] also placed a necklace with a pendant on [Aaron] during scheduled visitation. Later in the day, [Aaron] had the pendant in his mouth. [Respondent] refused to acknowledge it was a choking hazard given [Aaron's] age. During one visit, [respondent] had a sharp knife out within his reach during a scheduled visitation. Each time [DSS] and Guardian [ad Litem] attempted to provide [respondent] with feedback about parenting and safety choices, she would make an excuse for her actions such as she is his mother and she knows what is best for him. She repeatedly said that [Aaron] is a smart child, and he knows not to choke on the necklace, and he would not
touch the knife.
Respondent's continued instability regarding housing and employment, coupled with the concerning parenting skills she demonstrated during her scheduled visitations with Aaron, supported the trial court's conclusion that a repetition of neglect was likely if Aaron was returned to respondent's care. While respondent also challenges the trial court's conclusion that the ground for termination listed in N.C. Gen. Stat. § 7B-1111(a)(2) existed in this case, we need not address that challenge given our decision to uphold the trial court's conclusion that respondent's parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). See In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) ("A finding of any one of the enumerated grounds for termination of parental rights under [N.C. Gen. Stat. §] 7B-1111 is sufficient to support a termination."). The trial court's order terminating respondent's parental rights is affirmed.
AFFIRMED.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).