Opinion
No. COA09-892.
Filed December 8, 2009.
Wilson County Nos. 06 JA 118, 06 JA 120, 06 JA 121, 08 JA 35.
Appeal by respondent mother from orders entered 6 April 2009 by Judge John J. Covolo in Wilson County District Court. Heard in the Court of Appeals 10 November 2009.
Law Office of Stephen L. Beaman, PLLC, by Stephen L. Beaman, for petitioner-appellee. Peter Wood for respondent-appellant. Womble Carlyle Sandridge Rice, PLLC, by Georgiana L. Yonuschot, for guardian ad litem.
Respondent mother appeals from orders adjudicating her children — A.K. ("Allen"), L.R. ("Lisa"), V.R. ("Vincent"), and J.R. ("Joanna") — neglected and dependent, establishing a permanent plan of adoption, and ceasing reunification efforts and visitation. On appeal, respondent mother does not challenge the adjudication, but argues with respect to the disposition primarily that the trial court failed to make adequate findings to support the cessation of reunification efforts and that, in any event, the evidence does not support the trial court's decision. Respondent mother does not, however, specifically dispute the trial court's findings of fact. We hold that those findings are sufficient to support the trial court's decision to order that reunification efforts cease and, accordingly, affirm.
The pseudonyms of "Allen," "Lisa," "Vincent," and "Joanna" — and "Melissa" (who is not involved in this appeal) — are used throughout this opinion to protect the minors' privacy and for ease of reading.
Facts
Following a hearing on 23 April 2008, the trial court entered an order that Allen, Lisa, Vincent, and Joanna, as well as another child, M.K. ("Melissa"), were neglected and dependent based on respondent mother's stipulation. The trial court also relieved DSS of further reunification efforts and changed the children's permanent plan to adoption.
On appeal by respondent mother, this Court previously affirmed the adjudication and disposition as to Melissa, but reversed and remanded as to Allen, Lisa, Vincent, and Joanna. The Court held that the adjudication could not be based solely on respondent mother's stipulation in the absence of those children's fathers. See In re A.K., M.K., J.R., L.R., V.R., No. COA08-905, ___ N.C. App. ___, 671 S.E.2d 598, 2008 N.C. App. LEXIS 2193, 2008 WL 5223671 (Dec. 16, 2008) (unpublished).
On remand, the cases of Allen, Lisa, Vincent, and Joanna were consolidated for hearing. The father of Lisa, Vincent, and Joanna signed a relinquishment of his parental rights to the three children. Allen's father did not appear at the hearing, but his attorney was present and participated. In the orders entered for each child on 6 April 2009, the trial court set out the facts "recited in the court of appeals decision," adopting them "verbatim as a part of this order." The court explained that "[s]aid facts are found by this court not only as a result of the findings in the opinion of the Court of Appeals but also facts proven by clear, cogent and convincing evidence in this hearing after remand."
The trial court entered a separate order for each child. The orders are nearly identical except for the names of the juveniles and their respective caretakers.
Respondent mother does not specifically challenge any of these findings of fact on appeal. The trial court found that respondent mother had been involved with departments of social services since 1993 when she gave birth to a child after consuming cocaine just prior to the child's birth. That child was ultimately adopted by the child's foster parents.
Wilson County Department of Social Services ("DSS") became involved with respondent mother in 2003 after she was arrested and jailed for shoplifting. Allen and Melissa were both present during the shoplifting. Although there were concerns that respondent mother was abusing drugs and alcohol, drug tests were negative, and the children were returned to respondent mother's care. In July 2005, Nash County DSS removed Allen and Melissa from respondent mother's care after respondent mother was arrested, but the children were again ultimately returned to respondent mother.
In August 2006, respondent mother tested positive for cocaine following the birth of her twins, Lisa and Vincent. Lisa also tested positive for cocaine. On 12 September 2006, Wilson County DSS obtained a non-secure custody order for all four children, including Allen, Melissa, Lisa, and Vincent. On 3 November 2006, the children were adjudicated as neglected and dependent juveniles.
Respondent mother became a resident at the Grace Court Program in Lumberton, North Carolina. The program provided her with intensive services relating to drug and alcohol abuse, counseling, and a place to stay where she could also have her children stay with her. Vincent and Lisa returned to her care on 19 May 2007. Allen and Melissa were restored to her care on 7 June 2007. Respondent mother gave birth to Joanna on 25 July 2007. As of 31 October 2007, intervention by DSS ended.
Respondent mother acknowledged that the program director for the Grace Court Program warned her about developing a relationship with a man named Charles Taylor who had caused another participant in the program to relapse into drug and alcohol abuse. Nonetheless, respondent mother maintained a relationship with Taylor for about three months and made two withdrawals from her savings account of $500 each and gave the money to Taylor.
On or about 25 March 2008, a friend of respondent mother picked up respondent mother and Taylor at a motel where they had spent the night together while respondent mother's children stayed with various friends and relatives. Taylor then bought drugs and alcohol. At about 5:00 p.m. on 25 March 2008, respondent mother and Taylor were driving through a Wal-Mart parking lot. Respondent mother leaned out of the passenger window of the car and snatched a purse from an elderly lady walking to her car. When the police pulled the car over shortly after Taylor and respondent mother left the parking lot, they found Vincent and Lisa in the back seat of the car. When the officers arrested Taylor, respondent mother slid into the driver's seat and drove the car away. After the police abandoned the chase, she turned Vincent and Lisa over to her brother and drove to a friend's house where she drank alcohol until she passed out.
The next morning, respondent mother drove to her mother's house to pick up her three other children. Her mother had tried to return the children to respondent mother before, but had been unable to locate her over the days before 26 March 2008. Respondent mother left her mother's house with Melissa in her car. Soon afterward, she was identified by officers of the Wilson County Sheriff's Department. The officers chased her for 30 minutes over a distance of 10 to 12 miles. Numerous attempts were made to stop her. At one point, respondent mother drove across a house's yard in an effort to escape capture. The chase ended when the officers used a maneuver that caused her car to spin on the highway. When the car came to a stop, respondent mother fled, leaving Melissa in the car. After respondent mother was caught, her blood alcohol level was determined to be .14.
Respondent mother pled guilty to DWI and eluding arrest in Wilson County Superior Court. She also pled guilty in Robeson County Superior Court to common law robbery and was sentenced to 16 to 20 months in prison. She has been incarcerated since 26 March 2008 and has an expected release date of 19 February 2010.
At the hearing in the trial court, respondent acknowledged that Melissa and Allen had been out of her care five times since 2003, that Lisa and Vincent had been out of her care two times since their birth in August 2006, and that Joanna had been out of her care one time since her birth in July 2007. The trial court found that respondent mother "testified on cross-examination that the facts alleged in the petitions as to each child were true and correct. She admitted that she was not providing appropriate care and was not able to provide care for children on March 25 and 26, 2008." Further, the court found that respondent mother
acknowledged that she had been involved with various DSS agencies over the years and that drug and alcohol abuse was a major contributing factor to her being involved with those agencies. She also acknowledged that sometimes domestic violence was a part of the issues involved in her DSS matters and that criminal actions on her part had also been factors in DSS involvement including shoplifting in the presence of one or more of the children, use of drugs and/or alcohol, and the purse snatching in the Wal-Mart parking lot.
Based on these facts, the trial court determined that Allen, Vincent, Lisa, and Joanna were neglected and dependent juveniles. After making additional findings of fact in the dispositional phase of the proceeding, the trial court ceased reunification efforts with the parents and determined that adoption should be the permanent plan for each child. Respondent mother timely appealed from the adjudication and disposition orders.
Discussion
Respondent mother does not challenge on appeal the trial court's adjudication of the children as neglected and dependent. She first argues, however, that the trial court did not make the findings of fact required by N.C. Gen. Stat. § 7B-507(b) (2007) as a prerequisite to ceasing reunification efforts.
N.C. Gen. Stat. § 7B-507(b)(1) provides that a trial court may direct that DSS cease reunification efforts if it makes written findings of fact that "[s]uch 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." "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 is manifested "`when a trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision.'" Id. (quoting Chicora Country Club v. Town of Erwin, 128 N.C. App. 101, 109, 493 S.E.2d 797, 802 (1997), disc. review denied, 347 N.C. 670, 500 S.E.2d 84 (1998)).
In arguing that the trial court did not make the required findings, respondent mother focuses on a single finding by the court in which the court recited a factor and then addressed part of it in regard to the evidence in this case:
• Services which have been offered to reunite the family, or whether efforts to reunite the family clearly would be futile or inconsistent with the Juvenile's safety and need for a safe, permanent home within a reasonable period of time:
Wilson County DSS provided the following services to the family: Medicaid, kinship assessment, daycare, transportation, foster care payments and clothing allotments for the children.
Respondent mother claims, based on this finding, that the court "asked itself i[f] reunification is futile and then did not address the question."
Respondent mother, however, has disregarded the trial court's extensive other findings demonstrating that reunification would be futile and inconsistent with the children's health, safety, and need for a safe, permanent home within a reasonable period of time. See id. at 215, 644 S.E.2d at 595 (holding that findings satisfied § 7B-507(b)(1) because "[t]he trial court's findings support that further reunification efforts would be futile" (emphasis added)). See also In re N.G., 186 N.C. App. 1, 11, 650 S.E.2d 45, 51-52 (2007) (concluding that finding of fact " support[ed] the trial court's conclusion that reunification efforts would be futile" where finding mentioned that respondent parents, inter alia, failed to comply with DSS and service plans for six years, did not make reasonable reunification efforts with first child, had "not recognized appropriate responsibility or involvement in the injuries to their first child," and did not make "an adequate attempt . . . to cooperate with a safety plan to assure the juvenile's safety" (emphasis added)), aff'd per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008); In re M.J.G., 168 N.C. App. 638, 650, 608 S.E.2d 813, 820 (2005) (concluding "trial court did not erroneously fail to use the exact statutory language" of § 7B-507(b)).
Specifically, the trial court found that respondent mother had been involved with various departments of social services since 1993, had repeatedly had her children removed from her care because of substance abuse, criminal conduct (including conduct that took place in the presence of the children), and behavior that placed the children at risk, such as police chases. The children had been restored to her care on multiple occasions and services provided, but then respondent mother relapsed and engaged in behavior resulting again in the removal of her children. In the disposition phase, the court found in addition:
[Respondent mother] has been incarcerated since March 26, 2008 and is not scheduled for release until February, 2010. [Respondent mother] has been offered various services. [Respondent mother] also has a long history of substance use and abuse resulting in multiple contacts and charges with law enforcement. [Respondent mother] has maintained periods of sobriety, but has consistently relapsed to drug and alcohol abuse for over 20 years. Wilson County DSS is requesting to be relieved of reasonable efforts to reunify the Juvenile with the parents and requests the court change the plan to adoption.
. . . .
It is not possible or in the best interest of the Juvenile to return home due to [respondent mother's] inability to maintain sobriety and her incarceration. [Respondent mother] has an extensive history of substance use. [ Respondent mother] is not able to provide a safe environment for her children to live in due to her history of alcohol and drug abuse. She has not maintained a stable home for the children over several years as shown by repeated removal of her children from her care.
. . . .
Wilson Co. DSS and the GAL recommends [sic] that the plan be changed to adoption and that DSS be relieved of efforts to reunify the [] Juvenile and parents due to the fact [sic] set forth herein. Return of the Juvenile to the home is not possible in the next six months due to the mother's incarceration and the lack of involvement by the father. Adoption is the best plan.
(Emphasis added.) The trial court's findings are more than sufficient to establish that further reunification efforts would be futile or inconsistent with the children's health, safety, and need for a safe, permanent home within a reasonable period of time.
Respondent mother next contends that even if the findings of fact were sufficient, the trial court's decision to cease reunification efforts was not supported by the evidence. In making this argument, respondent mother asserts (1) that the trial court was not permitted to sever her ties with her children based solely on her substance abuse and (2) that the trial court should have waited until her release from incarceration to evaluate whether reunification efforts should end. Respondent mother states: "It is too early to give up on [respondent mother]. Ceasing reunification was premature."
We find this argument difficult to reconcile with the unchallenged findings of fact. According to those findings, respondent mother has been involved with various departments of social services for 16 years with her rights being terminated as to her first child and this Court's having upheld the ceasing of reunification efforts as to another child, Melissa. She first had a baby test positive for cocaine in 1993, and again had a newborn test positive in 2006. She has lost custody of Allen and Melissa five times, Lisa and Vincent twice, and Joanna once. She has repeatedly relapsed into substance abuse, has engaged in criminal conduct in the presence of the children, has twice involved children in police chases, and has driven a child while impaired. In addition, she associated with an individual who placed her at risk of relapse even though warned about him. She left her children with friends and family while she was with him.
The trial court did not cease reunification efforts based on substance abuse or incarceration alone, but rather specifically made findings as to how respondent mother's substance abuse and her criminal behavior affected the children. The court's findings of fact also demonstrate that this case does not involve any premature ceasing of reunification efforts, but rather involves extensive efforts over many years to allow respondent mother to maintain custody of her children. We hold that the trial court's order is amply supported by findings of fact and evidence.
Finally, respondent mother contends that the trial court erred in failing to grant her visitation rights with Allen, Lisa, Vincent, and Joanna because, she argues, "[t]here was absolutely no evidence that visitation would be detrimental to the children." N.C. Gen. Stat. § 7B-905(c) (2007) provides that "[a]ny dispositional order under which a juvenile is removed from the custody of a parent, . . . shall provide for appropriate visitation as may be in the best interests of the juvenile and consistent with the juvenile's health and safety."
We note, at the outset, that respondent mother has cited no authority supporting her contention that a trial court must make findings of fact regarding visitation when a court ceases reunification efforts in an abuse, neglect, or dependency case. In any event, "[t]his Court reviews the trial court's dispositional orders of visitation for an abuse of discretion." C.M., 183 N.C. App. at 215, 644 S.E.2d at 595.
In C.M., the respondent mother similarly argued that the trial court erred in terminating her visitation with C.M. at the same time it ceased reunification efforts. This Court first pointed out that "[t]he trial court found that N.M., the older sibling, had been adjudicated neglected, a case plan had been developed, reunification efforts had ceased, and respondent mother's parental rights to N.M. had been terminated." Further, "[b]ased upon respondents' unsuccessful parenting of N.M. and their lack of progress in working with DSS to parent C.M., the trial court ceased reunification efforts and terminated respondents' visitation with C.M." Id. This Court then concluded that "[t]he termination of respondent mother's visitation [was] supported by the findings and the evidence, and the ruling [was] the result of a reasoned decision." Id. See also N.G., 186 N.C. App. at 11, 650 S.E.2d at 52 ("In light of the historical facts of the case, respondents' failure to accept responsibility for L.G.'s injuries, their failure to cooperate with DSS and comply with their case plan, and the trial court's conclusion that reunification efforts should cease, we hold that the trial court's decision to cease visitation was not manifestly unsupported by reason. Accordingly, we hold that the court did not abuse its discretion in finding it to be in the best interests of the juvenile to cease reunification efforts and visitation.").
As this Court concluded in the above cases, our review of the trial court's findings of fact demonstrates that its decision to deny visitation after ceasing reunification efforts was a reasoned decision. Given respondent mother's lengthy history of substance abuse, the adverse effect of that substance abuse on the children, her criminal activity in the presence of the children, her current incarceration, the trial court's cessation of reunification efforts, and its determination that the permanent plan should be adoption, we conclude that the trial court did not abuse its discretion in deciding not to allow visitation. We note that the trial court's finding of fact on this issue could have been articulated more precisely, but the findings of fact are, as a whole, sufficient to support the denial of visitation.
Affirmed.
Judges McGEE and ROBERT HUNTER, JR. concur.
Report per Rule 30(e).