Opinion
No. COA15-1061
04-19-2016
IN THE MATTER OF: A.S.K., J.A.K.
Lucy R. McCarl for petitioner-appellee Caldwell County Department of Social Services. Mercedes O. Chut for respondent-appellant mother. Troutman Sanders LLP, by Gavin B. Parsons, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Caldwell County, Nos. 12 J 157-58 Appeal by respondent from order entered 22 June 2015 by Judge Burford A. Cherry in Caldwell County District Court. Heard in the Court of Appeals 4 April 2016. Lucy R. McCarl for petitioner-appellee Caldwell County Department of Social Services. Mercedes O. Chut for respondent-appellant mother. Troutman Sanders LLP, by Gavin B. Parsons, for guardian ad litem. ZACHARY, Judge.
Respondent, the mother of the juveniles A.S.K. and J.A.K., appeals from an order terminating her parental rights. We hold that the trial court did not err in terminating respondent's parental rights, and that respondent was not denied her right to effective assistance of counsel.
I. Factual and Procedural Background
Caldwell County Department of Social Services (DSS) began investigating respondent's family after receiving a report that A.S.K. and J.A.K. (the juveniles) had been sexually abused and were medically neglected. DSS visited respondent on 17 August 2012, and respondent informed the social worker that the juveniles had been placed with the maternal grandmother and that respondent was planning to move in with her boyfriend, J.P. A few days later, the social worker returned to complete a safety assessment, at which time respondent agreed to visit her children without J.P. due to J.P. displaying anger towards the social worker. On 12 September 2012, the juveniles were returned to respondent's care because of the maternal grandmother's health issues. The social worker completed a new safety assessment in which respondent agreed that J.P. would not be left unsupervised with the juveniles. On 17 September 2012, respondent underwent a psychological evaluation, which resulted in a diagnosis of several psychological disorders and other mental health concerns.
On 11 October 2012, respondent reported that she and J.P. had gotten into an argument, and she wanted to leave J.P. On 15 October 2012, respondent and the juveniles were transported to a women's shelter after respondent told a social worker that J.P. had "held a broom stick to her neck, blasted the music the night prior, drinks all day and night becoming abusive at night, and calling her names." Respondent agreed that she would not bring the children back to the home with J.P. Nevertheless, on 23 October 2012, respondent returned to the home with the children and married J.P.
On 24 October 2012, DSS filed petitions alleging that the juveniles were neglected and dependent juveniles and obtained non-secure custody of them. On 9 January 2013, the juveniles were adjudicated dependent based upon stipulations made by the parties that the allegations in the petition were true. DSS voluntarily dismissed the allegation of neglect.
On 23 July 2013, the trial court entered an order following a review hearing in which it found that respondent had obtained housing independent of J.P. The trial court found that respondent reported "she is staying away from [J.P.]" and "that her relationship with [J.P.] or her relationship with her children is a choice she has to make because she cannot have both." The court ordered respondent to have no contact with J.P.
DSS began allowing respondent to exercise unsupervised visitation with the juveniles in August 2013, but resumed supervision after a social worker observed respondent in a car with J.P. Respondent adamantly denied having any contact with J.P., and on 8 October 2013, the court ordered that respondent be allowed to resume unsupervised visits with the juveniles, on the condition that respondent not allow the juveniles to have contact with J.P. Respondent was again ordered not to have any contact with J.P.
The court held a permanency planning review hearing on 2 July 2014. The trial court found that respondent had initially obtained housing independent of J.P., but starting in May 2014, social workers had difficulty locating respondent at her residence. When a social worker finally located her, respondent informed the social worker that she was pregnant with J.P.'s child and was again residing with J.P. at his home. The court found as fact that respondent was dependent on J.P. for housing, had been untruthful with the court, and "never really did cease her relationship with [J.P.]" The court stated that respondent had come "full circle back to the same status she was in at the time the juveniles were removed." Accordingly, the court ceased reunification efforts and changed the permanent plan for the juveniles to adoption.
On 19 December 2014, DSS filed a motion to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (neglect) and (6) (dependency) (2015). On 22 June 2015, the trial court terminated respondent's parental rights.
Respondent appeals.
II. Grounds for Termination of Parental Rights
Respondent argues that the trial court erred by concluding that grounds existed to terminate her parental rights. We disagree.
A. Standard of Review
N.C. Gen. Stat. § 7B-1111 sets out the statutory grounds for terminating parental rights. "A finding of any one of the grounds enumerated therein, if supported by competent evidence, is sufficient to support a termination." In re J.L.K., 165 N.C. App. 311, 317, 598 S.E.2d 387, 391 (2004) (citation omitted). "The standard of appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law." In re D.J.D., 171 N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005) (citing In re Huff 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001)).
B. Analysis
In the instant case, the trial court concluded that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(6). Pursuant to this subsection, the trial court may terminate parental rights where:
the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.N.C. Gen. Stat. § 7B-1111(a)(6). A dependent juvenile is defined as "[a] juvenile in need of assistance or placement because (i) the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or (ii) the juvenile's parent, guardian, or custodian is unable to provide for the juvenile's care or supervision and lacks an appropriate alternative child care arrangement." N.C. Gen. Stat. § 7B- 101(9) (2015). "In determining whether a juvenile is dependent, 'the trial court must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.'" In re B.M., 183 N.C. App. 84, 90, 643 S.E.2d 644, 648 (2007) (quoting In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005)).
We conclude that the trial court's findings support its conclusion that the juveniles were dependent. Here, the trial court found:
The Respondent mother did obtain a psychological evaluation which identified certain mental health issues which needed to be addressed by the Respondent mother in counseling. She was diagnosed with Dependent Personality Disorder; and a Rule-out diagnosis of Histrionic Personality Disorder. She was recommended to have individual counseling to assist her in addressing these issues but she did not do so. The Respondent mother lacks insight or understanding as to how these diagnoses impact her decisions regarding the care and welfare of her children. The Court has seen the impact by her decision to marry [J.P.] despite the domestic violence and the impact on the children of that decision. She has demonstrated the dependency characteristics consistent with her mental health issues by choosing to marry [J.P.] to meet her own needs. The psychological evaluation also identified a need for the Respondent mother to have counseling to assist her in addressing her own sexual abuse and her chaotic up-bringing. The impact of those issues have also impacted her ability to appropriately parent her children. She has been unable to identify a satisfactory alternative child care arrangement for her children.
Respondent contends that there was minimal evidence of domestic violence between herself and J.P. prior to the adjudication of dependency, and thus the trial court erred by relying on her relationship with J.P. as the basis for the court's conclusion that she was incapable of parenting the juveniles. However, respondent stipulated to the facts alleged in the petition, and the trial court specifically found that J.P. held a broom stick to respondent's neck and was abusive towards her. See Thomas v. Poole, 54 N.C. App. 239, 241, 282 S.E.2d 515, 517 (1981) ("[S]tipulations are judicial admissions and are therefore binding in every sense, preventing the party who agreed to the stipulation from introducing evidence to dispute it and relieving the other party of the necessity of producing evidence to establish an admitted fact") (citations omitted). Furthermore, respondent did not appeal from the trial court's adjudication order. Therefore, she is bound by the doctrine of collateral estoppel from re-litigating the findings of fact regarding the conditions which led to the removal of her children. See In re Wheeler, 87 N.C. App. 189, 194, 360 S.E.2d 458, 461 (1987) ("Because no appeal was taken or other relief sought from the [adjudication] order, it remained a valid final order which was binding in the later proceeding on the facts regarding abuse and neglect which were found to exist at the time it was entered").
The trial court's findings squarely address the conditions which left respondent "unable or unavailable to parent the juvenile[s]." N.C. Gen. Stat. § 7B-1111(a)(6). Respondent suffered from several psychological issues, and the facts established a history of domestic violence between her and J.P. The trial court further found that J.P. was a party to the proceedings and had been ordered to participate in services and undertake certain tasks in order to allow him to have contact with the juveniles. J.P. failed to do so. Respondent, due to the history of domestic violence, was directed to have no contact with J.P. Instead, respondent lied to DSS, became pregnant with J.P.'s child, and allowed him to have contact with the juveniles during visitation. Respondent does not challenge these particular factual findings, and they are binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (unchallenged findings are deemed supported by competent evidence and are binding on appeal).
Respondent further contends that DSS failed to prove, and the trial court erred by finding, that she lacked an alternative child care arrangement. We are not persuaded. "Our courts have. . . consistently held that in order for a parent to have an appropriate alternative child care arrangement, the parent must have taken some action to identify viable alternatives." In re L.H., 210 N.C. App. 355, 364, 708 S.E.2d 191, 197 (2011). "Having an appropriate alternative childcare arrangement means that the parent [her]self must take some steps to suggest a childcare arrangement — it is not enough that the parent merely goes along with a plan created by DSS." Id. at 366, 708 S.E.2d at 198.
Here, the record establishes that the alternative caregivers cited by respondent, maternal second cousins, were not proffered by respondent, but instead made contact with DSS through their attorney. The record further demonstrates that these cousins were complicit with respondent in concealing the juveniles from DSS. In May 2014, respondent was allowed unsupervised visitation with the juveniles. DSS was informed that the juveniles had not been to daycare for close to three weeks, and attempted to locate the juveniles. DSS later learned that the juveniles were residing at the home of the maternal great-grandmother. The maternal second cousins were also residing in the home, and admitted they "did not tell [DSS] that the juveniles were there because they did not want to get [respondent] in trouble." Consequently, we conclude the trial court did not err by finding that respondent failed to identify a satisfactory alternative child care arrangement.
We conclude that the trial court's findings regarding respondent's mental health issues, in conjunction with the prior history of domestic violence and her subsequent decisions to return to her abuser and allow him contact with the juveniles, support the trial court's conclusion that respondent was incapable of parenting the juveniles. These findings, along with the lack of an appropriate alternative caregiver, support the trial court's determination that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(6) to terminate respondent's parental rights.
Respondent raises additional arguments with respect to termination of her parental rights on the basis of neglect. However, having held that other grounds existed to support termination of her parental rights, we need not address these arguments. See J.L.K., 165 N.C. App. at 317, 598 S.E.2d at 391.
III. Ineffective Assistance of Counsel
Respondent further argues that she received ineffective assistance of counsel. We disagree.
A. Standard of Review
At a termination hearing, "[t]he parent has the right to counsel, and to appointed counsel in cases of indigency, unless the parent waives the right." N.C. Gen. Stat. § 7B-1101.1(a) (2015). This statutory right "includes the right to effective assistance of counsel." In re Bishop, 92 N.C. App. 662, 665, 375 S.E.2d 676, 678 (1989). "To prevail in a claim for ineffective assistance of counsel, [the] respondent must show: (1) her counsel's performance was deficient or fell below an objective standard of reasonableness; and (2) her attorney's performance was so deficient she was denied a fair hearing." In re J.A.A., 175 N.C. App. 66, 74, 623 S.E.2d 45, 50 (2005) (citation omitted). "A parent must also establish [she] suffered prejudice in order to show that [she] was denied a fair hearing." In re S.C.R., 198 N.C. App. 525, 531, 679 S.E.2d 905, 909, appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009).
B. Analysis
In the present case, respondent contends that her attorney did not fulfill his basic duty to serve as an advocate on her behalf. See, e.g., In re S.N.W., 204 N.C. App. 556, 560, 698 S.E.2d 76, 79 (2010) ("It is well established that attorneys have a responsibility to advocate on the behalf of their clients"). Specifically, respondent cites counsel's failure to: (1) present any evidence; (2) challenge contradictory testimony presented by a DSS social worker; and (3) make any argument or take any position at the termination hearing. We are not persuaded.
It is apparent that even if counsel's performance were deficient, this was due to respondent's own actions. Respondent did not appear at the termination hearing, and counsel moved to continue the matter. Counsel informed the court that he had spoken with respondent the day prior, and she reported to him that she had "transmission trouble on her trip from Florida[.]" It was later discovered, however, that respondent had in fact been in North Carolina the day prior to the hearing and was in a position to attend. Respondent had not disclosed this fact to her attorney, and she only acknowledged this fact after it came to the attention of the court. Consequently, the court denied the motion to continue, finding that respondent's absence from the hearing was a "deliberate and knowing decision on her part." Under these circumstances, we decline to find that counsel was ineffective. See S.N.W., 204 N.C. App. at 561, 698 S.E.2d at 79 ("a finding of ineffective assistance of counsel will generally not be made where the purported shortcomings of counsel were caused by the party"); see also Bishop, 92 N.C. App. at 666, 375 S.E.2d at 679 ("Where the lack of preparation for trial is due to a party's own actions, the trial court does not err in denying a motion to continue").
This argument is without merit.
IV. Conclusion
The trial court's findings of fact were supported by evidence, and these findings supported its conclusions of law. The trial court did not err in concluding that grounds existed to terminate respondent's parental rights. Respondent was not denied her right to effective assistance of counsel.
AFFIRMED.
Judges HUNTER, JR., and DAVIS concur.
Report per Rule 30(e).