Opinion
No. COA11–1297.
2012-05-1
In the Matter of A.N., D.N., O.D., T.D., and K.D.
J. David Abernathy for petitioner-appellee, Catawba County Department of Social Services. Pamela Newell for appellee, Guardian ad litem.
Appeal by respondent-mother and respondent-father from orders entered 7 December 2010 and 16 August 2011 by Judge J. Gary Dellinger in Catawba County District Court. Heard in the Court of Appeals 3 April 2012. J. David Abernathy for petitioner-appellee, Catawba County Department of Social Services. Pamela Newell for appellee, Guardian ad litem.
W. Michael Spivey for respondent-appellant, mother.
Sydney Batch for respondent-appellant, father.
HUNTER, JR., ROBERT N., Judge.
Respondent-mother appeals from an order ceasing reunification with her five sons, A.N., D.N., O.D., T.D., and K.D. Respondent-mother also appeals from orders terminating her parental rights to her sons. Respondent-father appeals from orders terminating his parental rights to his three sons, O.D., T.D., and K .D. We affirm.
The Burke County Department of Social Services (“BCDSS”) became involved with the family in September 2007 when it received a report that respondent-father had severely paddled A.N., resulting in respondent-father being charged with misdemeanor child abuse and misdemeanor assault on a child. BCDSS extended intensive family preservation services to the family. On 1 April 2008, respondent-father assaulted respondent-mother, resulting in respondent-father being charged with felonious assault by strangulation and misdemeanor assault on a female. A week later, respondent-mother and her five sons moved to Catawba County to live with respondent-mother's grandmother. BCDSS transferred its case to Catawba County Department of Social Services (“CCDSS”).
On 3 June 2008, CCDSS filed a juvenile petition alleging that A.N ., age 7, was an abused, neglected, and dependent juvenile. CCDSS also filed juvenile petitions alleging that D.N., age 5, twins O.D. and T.D., age 2, and infant K.D. were neglected and dependent juveniles. CCDSS alleged that respondent-mother had entered into a safety plan in which she agreed to keep respondent-father away from her sons due to domestic violence issues; however, CCDSS had received numerous reports that respondent-father had been seen “in the vicinity of the home where the children are living.”
In September 2008, the trial court adjudicated A.N. to be abused and neglected, and D.N., O.D., T.D., and K.D. to be neglected. The trial court ordered CCDSS to have custody of the children. By a separate disposition order filed 10 December 2008, the trial court found that neither respondent-mother nor respondent-father had completed “all of the tasks asked of them and designed to assist them in preventing future abuse and neglect” despite the Department of Social Services working with the parents since 2007. The trial court ordered custody of the children to remain with CCDSS and ceased reunification efforts with respondent-mother and respondent-father.
Respondent-mother subsequently acquired a three-bedroom home, began domestic violence and parenting classes, obtained work, and scheduled a psychological evaluation. On 5 January 2009, the trial court reinstated reunification efforts with respondent-mother based upon her recent progress and her separation from respondent-father.
In September 2009, the trial court ordered the permanent plan be a concurrent plan of adoption and reunification with respondent-mother and, in March 2010, ordered the permanent plan be solely reunification with respondent-mother. Respondent-mother's visitation with her sons increased from two hours supervised in September 2009 to an overnight visit in July 2010. During this time period, the trial court ordered respondent-father not to have contact with his children; however, the court ordered respondent-father to complete his case plan should he “wish[ ] to improve his position[.]” By order filed 17 August 2010, the trial court continued the plan of reunification with respondent-mother.
The trial court held a review hearing on 9 November 2010. In its permanency planning order filed 17 December 2010, the trial court found that respondent-mother's mental health deteriorated as her visitation increased and that she had “regressed significantly, despite her receipt of numerous services[.]” The trial court ceased reunification efforts with respondent-mother and changed the permanent plan to a concurrent plan of either guardianship or adoption.
In February 2011, CCDSS filed a motion to terminate respondent-mother's parental rights to her children under N.C. Gen.Stat. § 7B–1111(a)(1) (neglect); N.C. Gen.Stat. § 7B–1111(a)(2) (failure to make reasonable progress); and N.C. Gen.Stat. § 7B–1111(a)(6) (incapability of providing proper care and supervision of the child). CCDSS also sought to terminate respondent-father's parental rights to his three sons under N.C. Gen.Stat. § 7B–1111(a)(1) (neglect); N.C. Gen.Stat. § 7B–1111(a)(2) (failure to make reasonable progress); and N.C. Gen.Stat. § 7B–1111(a)(7) (abandonment). After holding a hearing, the trial court found grounds to terminate the parental rights of respondent-mother and respondent-father based upon neglect and failure to make reasonable progress. In a separate order, the trial court found that it was in the best interest of A.N., D.N., O.D., T.D., and K.D. to terminate respondent-mother's parental rights, and that it was in the best interest of O.D., T.D., and K.D. to terminate respondent-father's rights. Respondent-mother and respondent-father appeal separately.
CCDSS asserts that respondent-mother did not preserve her right to appeal the order ceasing reunification efforts because her notice of appeal does not list the December 2010 order. Respondent-mother petitioned this court for writ of certiorari seeking review of the December 2010 order. We dismiss respondent-mother's petition for writ of certiorari as moot because respondent-mother properly preserved her right to appeal the order ceasing reunification efforts since she properly appealed from the termination orders in a timely manner and identified the order ceasing reunification as an issue in the record on appeal. SeeN.C. Gen.Stat. § 7B–1001 (2011) (This Court shall review both the termination of parental rights order and the order to cease reunification if (1) “[a] motion to terminate the parent's rights is heard and granted[,]” (2) “[t]he order terminating parental rights is appealed in a proper and timely manner[,]” and (3) “[t]he order to cease reunification is identified as an issue in the record on appeal of the termination of parental rights.”); see alsoN.C. R.App. P. 3.1(a) (detailing the proper procedure for filing notice of appeal in a juvenile case).
I. Reunification Efforts
Respondent-mother first contends the trial court erred by ceasing reunification efforts in its December 2010 order. Respondent-mother asserts “[t]he evidence DSS offered at the 9 November 2010 permanency planning review does not support the trial court's finding that reunification efforts would be futile or inconsistent with the children's welfare.” We disagree.
“The trial court may ‘only order the cessation of reunification efforts when it finds facts based upon credible evidence presented at the hearing that support its conclusion of law to cease reunification efforts.” In re N.G., 186 N.C.App. 1, 10, 650 S .E.2d 45, 51 (2007) (quoting In re Weiler, 158 N.C.App. 473, 477, 581 S.E.2d 134, 137 (2003)), aff'd per curium, 362 N.C. 229, 657 S.E.2d 355 (2008). “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 CM., 183 N.C.App. 207, 213, 644 S.E.2d 588, 594 (2007) (citations omitted). “ ‘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.’ “ N.G., 186 N.C.App. at 10–11, 650 S.E.2d at 51 (citation omitted).
N.C. Gen.Stat. § 7B–507(b) provides 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:
(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[.]
N.C. Gen.Stat. § 7B–507(b) (2011).
In its permanency planning order, the trial court found: (1) respondent-mother had been diagnosed in October 2010 with major depressive disorder, single severe, without psychotic features with anxiety and dependent features; (2) respondent-mother's mental health had deteriorated; (3) respondent-mother slept through most of her visit on 12 September 2010 and, as a result, CCDSS changed respondent-mother's visitation back to supervised; (4) respondent-mother cancelled a scheduled visit with her children on 24 October 2010 because she had no money for gas or food; and (5) respondent-mother did not interact with the children at the 2 November 2010 supervised visit. In finding of fact 21, the trial court specifically found:
21. .... Because the mother has regressed significantly, despite her receipt of numerous services, as described herein above, further reunification efforts with her clearly would be futile and inconsistent with the children's health, safety, and need for a safe permanent home within a reasonable period of time and, therefore, should cease.
The review hearing evidence tends to show that respondent-mother received intensive reunification services until August 2010. Despite such services, CCDSS had concerns about respondent-mother's parenting and her ability to keep her children safe. CCDSS social workers testified that respondent-mother slept through an unsupervised visit, leaving A.N. to make breakfast and a snack for himself and his siblings; that respondent-mother's children spilled liquids out of the refrigerator; and that one son came back to the foster parents' house with a burn on his jacket sleeve. In the most recent supervised visit, respondent-mother sat on the couch and did not interact with her children. CCDSS also had concerns about respondent-mother's mental health and her failure to take her medication appropriately. A social worker testified that respondent-mother had a “suicide ideation [ ] within the last two months about running herself off a bridge.” We conclude the trial court made appropriate findings of fact, that those findings are based upon credible evidence, and that the findings support its conclusions of law. We further conclude the trial court did not abuse its discretion in ceasing reunification efforts.
II. Grounds for Termination
Respondent-mother and respondent-father contend the trial court erred in concluding that grounds existed to terminate their parental rights under N.C. Gen.Stat. § 7B–1111(a)(1). We disagree.
‘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 citation omitted). “Findings of fact to which a respondent did not object are conclusive on appeal.” In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 426 (2003).
A trial court may terminate parental rights based on a finding that the parent has neglected the juvenile. N.C. Gen.Stat. § 7B–1111(a)(1) (2011).
Neglected juvenile.—A juvenile 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.
N.C. Gen.Stat. § 7B–101(15) (2011). Generally, “[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). However, “a prior adjudication of neglect may be admitted and considered by the trial court in ruling upon a later petition to terminate parental rights on the ground of neglect.” In re Ballard, 311 N.C. 708, 713–14, 319 S.E.2d 227, 231 (1984). Where a prior adjudication of neglect is considered by the trial court, “[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.” Id. at 715, 319 S.E.2d at 232. Thus, where
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 or] her parents.
In re Reyes, 136 N.C.App. 812, 814–15, 526 S.E.2d 499, 501 (2000). Respondent-mother and respondent-father acknowledge that there was a past adjudication of neglect.
A. Respondent-father
To support its conclusion that respondent-father neglected his three sons, the trial court made the following unchallenged findings:
40. As of the date of the termination of parental rights hearing, Respondent Father [D.] still had not begun recommended domestic violence treatment. Mr. [D.] was verbally, physically and sexually abusive towards the Respondent Mother. Social Worker Kester referred Mr. [D.] for a domestic violence assessment at the Family Guidance Center/First Step in October 2008. Respondent Father [D.] did complete anger management classes at DonLin Counseling Services for purposes of his probation. Nonetheless, when he later completed a domestic violence assessment at the Family Guidance Center/First Step on May 5, 2011, he was recommended to complete the Mate Abuser Treatment program, evidencing that anger management classes and domestic violence treatment are not the same; thus, the completion of anger management classes was not sufficient for purposes of this proceeding.
41. As of the date of the termination of parental rights hearing, Respondent Father [D.] still had not completed parenting classes. He began a parenting program in April 2011 and, as of May 23, 2011, had completed seven of the 16 required classes. Mr. [D.] previously was enrolled in parenting classes twice in 2009, but did not complete either program.
....
50. Respondent Father [D.] has offered a number of excuses for his failure to make sufficient progress in this matter, including, but not limited to, assigning blame to the Catawba County Department of Social Services and the United States Postal Services, as well as asserting a lack of funds and transportation. The Court specifically rejects each of his excuses, however, as Mr. [D.] still was able to access services, funds and transportation to comply with the terms of his criminal probation, and he chose to cease communicating with the Department and his attorney and participating in this matter. Further, during the period of time when the Department of Social Services still was charged with making reasonable reunification efforts with him, Mr. [D.] failed to avail himself of those opportunities.
51. The primary issues that brought Respondent Father [D.'s] children into foster care and the purview of this Court were his inappropriate discipline of [A.N.] and his domestic violence against the Respondent Mother. As Mr. [D.] still has not addressed these issues—namely, by obtaining a psychological evaluation and following its recommendation, by participating in recommended domestic violence treatment, and by completing parenting classes—the likelihood of the repetition of neglect, should the juveniles be returned to his home and care either now or in the foreseeable future, is great.
Here, the uncontested findings of fact show that respondent-father's failure to make substantial progress in dealing with his domestic violence and parenting issues, establishes a probability of repetition of neglect should his sons be returned to respondent-father's custody. We hold that these findings of fact provide ample support for the trial court's conclusion of law that grounds existed under N.C. Gen.Stat. § 7B–1111(a)(1) supporting termination of respondent-father's parental rights.
B. Respondent-mother
To support its conclusion that respondent-mother neglected her five sons, the trial court made the following unchallenged findings:
52. In an effort to rectify the conditions that caused the juveniles to enter foster care and the purview of this Court, the Respondent Mother was ordered, in pertinent part, to: enter into a case plan with the Catawba County Department of Social Services; obtain a psychological evaluation and comply with the resulting recommendations; comply with the recommendations of her Catawba Valley Behavioral Healthcare mental health assessment, including attending therapy and medication management appointments; consistently attend family therapy sessions with [A.N.] and [D.N.], as recommended by the juveniles' therapist; obtain a domestic violence assessment and comply with the resulting recommendations; complete parenting classes; obtain stable, appropriate, independent housing; obtain stable employment; and demonstrate the ability to independently and consistently provide for all of the needs of all five juveniles.
....
55. On April 11, 2010, the Respondent Mother informed Social Worker Alicia Kester that she was unable to attend a scheduled visitation because she had to seek treatment at the hospital for a panic attack. The Respondent Mother added that she had taken a Klonopin pill, which a friend gave to her, and for which she held no prescription.
56. Regarding her September 12, 2010 unsupervised overnight visit, the Respondent Mother informed Social Worker Kester that she had slept for a large portion of the visit because she was “so stressed out”. She also reported to the social worker that she had taken four Klonopin pills, instead of two. The Respondent Mother did not believe that sleeping while the juveniles were awake and unsupervised and that taking more medication than was prescribed for her were problematic.
57. On October 12, 2010, at the request of the social worker, the Respondent Mother underwent a mental health assessment with Thomas McDaniel at Catawba Valley Behavioral Healthcare. During the assessment, the Respondent Mother noted that she had been suffering from symptoms of depression and anxiety for approximately two years, which had intensified over the prior three months. The Respondent Mother's first overnight visit with the juveniles occurred on July 16, 2010, approximately three months prior to her mental health assessment. Mr. McDaniel diagnosed the Respondent Mother with (Axis I) Major Depressive Disorder, single, severe, without psychotic features (with anxiety) and (Axis II) Rule Out Personality Disorder, not otherwise specified, with dependent features. Mr. McDaniel recommended that the Respondent Mother attend individual therapy and medication management appointments.
58. The Respondent Mother attended only one individual therapy appointment, on December 28, 2010. She failed to appear for two other scheduled appointments, on January 21, 2011 and March 3, 2011. On March 3, 2011, Mr. McDaniel called the Respondent Mother, and she informed him that she had moved to Fayetteville and had forgotten about her appointments. She further informed Mr. McDaniel that she did not believe that she needed mental health services and rejected his offer to refer her for comparable services in Fayetteville. On January 26, 2011, the Respondent Mother informed Social Worker Julie Rhodes that she had unilaterally ceased taking her prescribed medications and no longer believed she required them. Mr. McDaniel testified, and the Court finds, that the Respondent Mother continues to require therapeutic and pharmacological intervention, and, without the same, the Respondent Mother's symptoms likely will worsen.
....
63. The same concerns have been noted during the Respondent Mother's visitation with the juveniles throughout the pendency of the underlying action. The Respondent Mother will interact with only one or two of the juveniles and ignore the others for a substantial portion of a visit. On occasion, she will ignore all of the juveniles and instead spend the time texting or simply sitting on the couch and staring into space. When the Respondent Mother ignores one or more of the juveniles, they will regress and act out, including by being aggressive, to capture her attention, which results in the visits becoming stressful and chaotic. When the juveniles act out, the Respondent Mother has to be prompted to redirect them and is unable to manage their behaviors. The visitation supervisors are able to successfully redirect the juveniles.
....
67. The Respondent Mother also has been unable or unwilling to provide appropriate care for the juveniles during her visitation. By way of example only: she has had to be prompted multiple times to change the juveniles' soiled diapers and clothing; she has had to be prompted to clean up spills; and she has allowed the juveniles to watch inappropriate movies on at least two occasions. On December 15, 2009, during a visit at the Respondent Mother's home, a top bunk bed that the juveniles were playing on fell, and, despite hearing one of the juveniles crying, she did not respond immediately by checking on them. On January 12, 2010, during a visit at the Respondent Mother's home, there were cigarette butts in an ashtray on a low table, and three puppies she had taken in had defecated and urinated on the floor. The Respondent Mother only fed the juveniles snack items, and not dinner, during this visit.
....
71. On January 26, 2011, the Respondent Mother informed the social worker that she had lost her housing, had moved temporarily to Fayetteville, North Carolina, and, after she received her income tax refund, planned to move to Orlando, Florida. She further stated that, after she moves to Orlando, she no longer will be able to attend her supervised visitation with the juveniles, but will return for them after she gets her life together.
....
75. The similarities between various social workers' descriptions of the Respondent Mother's lack of attention to and supervision of the juveniles, her inability to manage them, and the condition of her home from 2007 through the present are striking. Despite her receipt of myriad parenting education services, the Respondent Mother's ability to appropriately interact with and care for the juveniles has not improved. There are no other services available that the Respondent Mother has not already participated in to improve her capacity to parent the juveniles. Accordingly, and as she also fails to appreciate her need for consistent mental health intervention, there is a strong probability of the repetition of neglect should the juveniles be returned to the Respondent Mother's home either now or in the foreseeable future.
Respondent-mother argues that she “remedied the conditions of abuse and neglect for which the children were removed from her care.” She contends that the evidence did not, therefore, support the trial court's finding that there was a probability that the neglect would recur if her sons were returned to her. We disagree.
Here, the trial court considered the evidence of changed conditions and found that respondent-mother's progress had deteriorated. Despite the services provided by CCDSS, respondent-mother failed to demonstrate the ability to independently and consistently provide for all of the needs of all five juveniles. Further, respondent-mother was not attending individual therapy nor taking her medication as recommended. We hold that these findings of fact provide ample support for the trial court's conclusion of law that grounds existed under N.C. Gen.Stat. § 7B–1111(a)(1) supporting termination of respondent-mother's parental rights.
Because we hold the trial court did not err in concluding grounds existed to terminate respondent-mother's and respondent-father's parental rights to their children pursuant to section 7B–1111(a)(1), we do not address respondents' additional arguments regarding the trial court's conclusion that other grounds existed to terminate their parental rights. In re P.L.P., 173 N.C.App. 1, 8, 618 S.E.2d 241, 246 (2005), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006).
Affirmed. Judges McGEE and STEPHENS concur.
Report per Rule 30(e).