Opinion
No. COA12–1458.
2013-06-4
In the Matter of A.J.W., J.E.W., III.
Lucy R. McCarl for petitioner-appellee Caldwell County Department of Social Services. Administrative Office of the Courts, by Appellate Counsel Tawanda N. Foster, for guardian ad litem.
Appeal by respondent-father from orders entered 21 June 2010 and 18 September 2012 by Judge C. Thomas Edwards in Caldwell County District Court. Heard in the Court of Appeals 13 May 2013. Lucy R. McCarl for petitioner-appellee Caldwell County Department of Social Services. Administrative Office of the Courts, by Appellate Counsel Tawanda N. Foster, for guardian ad litem.
Richard Croutharmel for respondent-appellant father.
DILLON, Judge.
Respondent-father appeals from the trial court's orders ceasing efforts toward reunification and terminating his parental rights to the minor children A.J.W. (Alice), born 14 October 2002, and J.E.W., III(Joe), born 3 April 2004. We affirm.
Pseudonyms are used throughout this opinion to protect the identity of the minors.
Alice and Joe were adjudicated dependent juveniles in 2005 pursuant to a petition filed by the Caldwell County Department of Social Services (CCDSS). Respondent-mother was abusing drugs, living in an unsanitary home, and unable to provide adequate supervision. Respondent-father, who was diagnosed with anti-social personality disorder and paranoid schizophrenia, refused to cooperate with CCDSS or comply with the recommendations of a court-ordered psychological evaluation or substance abuse assessment. The court ceased reunification efforts with respondent-father in November of 2005 and forbade him from contact with respondent-mother and the children. Alice and Joe were returned to respondent-mother on a trial basis in 2006, after she moved to Buncombe County, but were again removed when respondent-father was found living in the home. The children were again returned to respondent-mother in August of 2006, and the Buncombe County Department of Social Services closed the case file later that year.
Following respondent-mother's return to Caldwell County, CCDSS filed a juvenile petition on 3 September 2009, alleging substance abuse by respondent-mother and living conditions similar to those which led to the children's 2005 adjudications. Respondent-father was in prison for assault on a female, carrying a concealed weapon, and other offenses. Respondent-parents stipulated to allegations of dependency, and the court adjudicated Alice and Joe dependent on 10 February 2010.
After a hearing on 2 June 2010, the court entered a dispositional order ceasing reunification efforts on 21 June 2010. Although respondent-father had an immediate appeal of right from this order, seeN.C. Gen.Stat. § 7B–1001(a)(3) (2011), he instead chose to preserve his right to appeal by filing notice pursuant to N.C. Gen.Stat. §§ 7B–507(c), –1001(a)(5) (2011). The court established a permanent plan of adoption on 16 August 2010.
CCDSS filed a motion to terminate respondent-father's parental rights on 12 October 2010. After multiple continuances and several days of hearings, the trial court found grounds for termination as to Alice and Joe based on (1) neglect, (2) lack of reasonable progress, and (3) failure to pay a reasonable portion of their cost of care. N.C. Gen.Stat. § 7B–1111(a)(1)(3) (2011). At disposition, the court concluded that termination of parental rights was in the best interest of the minor children.
On appeal, respondent-father challenges the court's decision to cease reunification efforts. He concedes that the 21 June 2010 dispositional order contained the requisite statutory language “that such efforts would be futile and inconsistent with the juveniles' need for a safe, permanent home within a reasonable period of time[,]” seeN.C. Gen.Stat. § 7B–507(b)(1) (2011), but argues that this conclusion is unsupported by the findings of fact. Although the court made findings regarding respondent-father's prior interactions with CCDSS, as well as his criminal record and mental health diagnoses, respondent-father characterizes these findings as historical and unconnected to his capacity to care for the children in 2009. He specifically challenges the finding that he failed to enter into a case plan with CCDSS in 2009, because the evidence did not “show that [his] failure was willful.”
“This Court reviews an order that ceases 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). “ ‘An abuse of discretion occurs when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision.’ “ In re N.G., 186 N.C.App. 1, 10–11, 650 S.E.2d 45, 51 (2007) (citation omitted).
“When a trial court ceases reunification efforts with a parent, it is required to make findings of fact pursuant to N.C. Gen.Stat. § 7B–507 (b).” In re C.M., 183 N.C.App. at 213–14, 644 S.E.2d at 594. “A trial court may cease reunification efforts upon making a finding that further efforts ‘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[.]’ “ Id . at 214, 644 S.E.2d at 594 (quoting N.C. Gen.Stat. § 7B–507 (b)(1)). Though characterized as a finding or “ultimate finding[,]” see In re I.R.C., –––N.C.App. ––––, ––––, 714 S.E .2d 495, 499 (2011), the determination that grounds exist to cease reunification efforts under N.C. Gen.Stat. § 7B–507(b)(1) is, in substance, a conclusion of law that must be supported by adequate findings of fact. Id. at ––––, 714 S.E.2d at 498–99.
The findings of fact in the 21 June 2010 dispositional order fully support the court's conclusion that further efforts toward reunification would be futile or inconsistent with Alice and Joe's “need for a safe, permanent home within a reasonable period of time[.]” N.C. Gen.Stat. § 7B–507 (b)(1). In addition to making findings pertaining to respondent-father's psychological diagnoses, the court noted the psychologist's assessment in 2005 that respondent-father “had been living an anti-social life for years, and it would be difficult for the Respondent father to change, and ... that it would be inevitable that [he] would be imprisoned.” The court found that respondent-father had an “extensive” criminal record, which included multiple drug and driving-related convictions in 2008 and 2009 and a conviction for carrying a concealed handgun after his release from prison in 2009, and that he had been imprisoned from March to October of 2009 for assaulting his mother and driving while license revoked. At the time of the dispositional hearing in June 2010, respondent-father had eight additional criminal charges pending against him; he was also unemployed and lacked a driver's license. In addition, the court made findings regarding the children's mental health problems, particularly Joe's anger and aggression, suicidal ideations, and a fear of respondent-father that included nightmares and “flashbacks ... [of] apparently violent behavior by his father.” These findings are uncontested by respondent-father and are thus binding on appeal. In re S.N., 194 N.C.App. 142, 147, 669 S.E.2d 55, 59 (2008).
Respondent-father objects to the court's finding that “despite being released from custody in the fall of 2009, [he] has not yet signed a case plan.” Although respondent-father insists that his failure was not willful, there is no requirement of “willfulness” under N.C. Gen.Stat. § 7B–507 (b)(1). The court heard testimony from CCDSS social workers that, since September 2009, they had attempted to arrange an appointment for respondent-father to develop a case plan. At one point, respondent-father had contacted CCDSS to say that he would be unable to attend a scheduled meeting due to inclement weather. A social worker “attempted to call him after that on a cell phone and left a message at his mother's house, [but] didn't get any phone calls from [respondent-father], and he didn't ever attempt to call [CCDSS] and enter into a case plan.” Only when respondent-father appeared in court for the dispositional hearings on 5 May and 2 June 2010 did he again ask the social workers about a case plan. We conclude that this evidence supports the contested finding.
Furthermore, we conclude that the court's findings are sufficient to sustain its conclusion of law under N.C. Gen.Stat. § 7B–507(b)(1), see, e.g., In re T.R.M., 208 N.C.App. 160, 164, 702 S.E.2d 108, 111 (2010), and we discern no abuse of discretion in the trial court's decision to cease reunification efforts under these circumstances.
Respondent-father next argues that the trial court and CCDSS violated his right to due process by ceasing reunification efforts before allowing him to enter into a case plan. Our careful examination of the appellate record, however, reveals that that this issue is not properly before this Court.
“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R.App. P. 10(a)(1) (2013). “Moreover, it is well settled that a constitutional issue not raised in the lower court will not be considered for the first time on appeal.” In re S.C.R., 198 N.C.App. 525, 530, 679 S.E.2d 905, 908 (2009).
At no time did counsel for respondent-father raise a due process challenge to the court's cessation of reunification efforts. Such a claim does not appear in any pleading filed by respondent-father or in any argument by counsel at the dispositional hearing on 2 June 2010 or at the subsequent termination hearing. Although respondent-father testified at the termination hearing that he believed CCDSS had denied him and his children due process, counsel never pursued this constitutional claim; and the court did not address it. It is axiomatic that “ ‘[a] party may appear either in person or by attorney in actions or proceedings in which he is [interested]’.... [T]he right is alternative and [ ] a party has no right to ‘appear’ both by himself and by counsel.” Hamlin v. Hamlin, 302 N.C. 478, 481–82, 276 S.E.2d 381, 384–85 (1981) (quoting N.C. Gen.Stat. § 1–11) (first alteration in original) (citations omitted). Because respondent-father did not preserve his constitutional claim for our review, it is dismissed.
Respondent-father has raised no additional arguments related to the orders terminating his parental rights. Accordingly, having affirmed the order ceasing reunification efforts, we likewise affirm the termination orders.
AFFIRMED. Judges STROUD and HUNTER, JR. concur.
Report per Rule 30(e).