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In re B. L.C.

COURT OF APPEALS OF NORTH CAROLINA
Jul 19, 2016
No. COA16-135 (N.C. Ct. App. Jul. 19, 2016)

Opinion

No. COA16-135

07-19-2016

IN THE MATTER OF: B.L.C.

Dolly Bevan Manion for petitioner-appellees. Batch, Poore & Williams, PC, by Sydney Batch, for respondent-appellant.


An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Forsyth County, No. 15 JT 20 Appeal by respondent from order entered 13 October 2015 by Judge Lisa V.L. Menefee in Forsyth County District Court. Heard in the Court of Appeals 27 June 2016. Dolly Bevan Manion for petitioner-appellees. Batch, Poore & Williams, PC, by Sydney Batch, for respondent-appellant. McCULLOUGH, Judge.

Respondent appeals from an order terminating her parental rights as to the minor child B.L.C. ("Brad"). Brad's biological father did not contest the termination of his parental rights and is not a party to the instant appeal. We now affirm the trial court's order.

On 3 November 2013, in the third trimester of her pregnancy with Brad, respondent was admitted to Moses Cone Women's Hospital in Greensboro, North Carolina ("Women's Hospital"), heavily intoxicated and suffering from oral thrush and acute renal failure. Respondent acknowledged using a variety of controlled substances during her pregnancy including Xanax, Opana, heroin, and cocaine. The hospital's neonatal intensive care unit ("NICU") social worker, Colleen Shaw ("Ms. Shaw"), was unable to convince respondent to enroll in inpatient substance abuse treatment but did arrange for respondent to obtain methadone and related treatment at Addiction Recovery Services ("ADS") following her discharge on 6 November 2013. Concerned for respondent's six-year-old son, whom respondent said was living with her mother, Ms. Shaw made a child protective services ("CPS") report to Rockingham County Department of Social Services ("DSS") on the day respondent was discharged.

CPS investigator Jordan Houchins ("Mr. Houchins") met respondent and her mother in her mother's home on 7 November 2013. Respondent acknowledged using a variety of drugs, particularly benzodiazepines and opiates, and "went into detail about [her] IV drug use, about how she diluted the prescription medications and shot them up." Respondent's mother "expressed a lot of concerns about [respondent] coming over to the home high all the time around [her son] who they had cared for, for pretty much his whole life . . . ." Respondent, her mother, and her stepfather entered in a kinship care agreement prohibiting her from coming to their home while under the influence of drugs and requiring her contact with her son to be supervised. During a series of conversations with respondent, Mr. Houchins repeatedly recommended that she obtain inpatient substance abuse treatment. Respondent refused. DSS eventually arranged for respondent's mother to obtain legal custody of respondent's son, due to respondent's lack of progress on her case plan.

As part of her treatment at ADS, respondent was subject to weekly drug screens from 8 November to 26 December 2013. She consistently tested positive for unapproved drugs including benzodiazepines, opiates, oxycodone, tetrahydrocannabinol, and cocaine.

Respondent gave birth to Brad on 31 December 2013. Her urine test was positive for benzodiazepines. After the birth, Brad's father disclosed to Ms. Shaw that respondent "was using heroin." Both respondent and the father were subsequently barred from the hospital in mid-January 2014 due to their disruptive behavior and continued drug use. Although ADS policy prohibited terminating respondent from its program during her pregnancy, it terminated her for noncompliance soon thereafter.

Brad was born premature and addicted to methadone and was diagnosed with Neonatal Abstinence Syndrome ("NAS"). He was admitted to the NICU as a "NAS baby," where he remained until 2 February 2014. Brad continued receiving medication for his withdrawal symptoms until August of 2014.

Petitioners are Brad's paternal aunt ("Mrs. C.") and her husband. Within days of Brad's birth, they initiated civil custody proceedings in Rockingham County District Court and were granted temporary emergency custody of the child on 8 January 2014. Respondent's mother and stepfather ("intervenors") were allowed to intervene in petitioners' custody action by consent of the parties. The trial court held a hearing on petitioners' custody complaint on 11 September 2014. Respondent was served with notice of the hearing but did not attend. The court granted legal and physical custody of Brad to petitioners by order entered 24 October 2014, finding and concluding as follows:

10. That [respondent and Brad's father] are both unemployed, continue to struggle with substance abuse, are unstable, and cannot provide the minor child with a proper living environment. That [respondent's mother] testified that she did not know where [respondent] was residing.

. . . .

5. That [respondent and Brad's father] are not fit and proper persons to have visitation with the minor child and have acted in a manner inconsistent with their constitutionally protected status of a natural parent and it would not be in the best interest of the minor child to award [them] any visitation with the minor child at this time.
N.C. Gen. Stat. § 7B-1103(a)(7) (2015). The court awarded intervenors "reasonable visitation" with Brad to include alternate weekends and certain holidays, subject to the condition that respondent not be present.

On 28 January 2015, petitioners filed a petition to terminate the parental rights of Brad's parents in Forsyth County District Court concurrent with a petition to adopt Brad as their own son. See N.C. Gen. Stat. § 7B-1103(a)(7) (2015). The trial court held a hearing on the termination petition on 27 July and 21 August 2015. Brad's father stipulated that grounds existed to terminate his parental rights and that Brad's best interests would be served by termination. After hearing the evidence and arguments of the parties, the court adjudicated the existence of grounds to terminate respondent's parental rights based on neglect, dependency, and willful abandonment under N.C. Gen. Stat. § 7B-1111(a)(1), (6), and (7) (2015). Pursuant to N.C. Gen. Stat. § 7B-1110(a) (2015), the court further determined that the termination of respondent's parental rights was in Brad's best interests.

The court adjudicated the same grounds for termination and made the same best interests determination with regard to Brad's father.

The trial court filed its termination order on 13 October 2015, but the order was not served until 20 October 2015. Respondent filed notice of appeal on 13 November 2015. As petitioners observe, her certificate of service states that she did not serve petitioners with her notice of appeal until 16 November 2015, a violation of N.C. R. App. P. 26(b) and (d). Moreover, respondent's attempt to serve the notice upon petitioners' counsel by mail was unsuccessful, because respondent addressed it to the wrong post office box. The record reflects that petitioners' counsel were subsequently served with the Appellate Entries entered by the trial court on 17 November 2015.

Petitioners have moved this Court to dismiss respondent's appeal for failure to effect service of her notice of appeal in accordance with N.C. R. App. P. 3.1(a) and 26(b). We allow petitioners' motion and dismiss the appeal. In our discretion, however, we allow respondent's petition for writ of certiorari to review the termination order. See N.C. R. App. P. 21(a).

I. Adjudication

Respondent first claims the trial court erred by concluding that grounds exist to terminate her parental rights in Brad. We review an adjudication under N.C. Gen. Stat. § 7B-1111(a) under the following standard:

[W]e must determine whether the findings of fact are supported by clear, cogent and convincing evidence, and whether the findings support the court's conclusions of law. If there is competent evidence, the findings of the trial court are binding on appeal. An appellant is bound by any unchallenged findings of fact. Moreover, erroneous findings unnecessary to the determination do not constitute reversible error where the adjudication is supported by sufficient additional findings grounded in competent evidence. We review conclusions of law de novo.
In re B.S.O., 234 N.C. App. 706, 707-708, 760 S.E.2d 59, 62 (2014) (citations and internal quotation marks omitted). We further note "that any single ground . . . is sufficient to support an order terminating parental rights. Therefore, if we determine that the court properly found one ground for termination under N.C. Gen. Stat. § 7B-1111(a), we need not review the remaining grounds" found by the court. Id. at 708, 760 S.E.2d at 62 (citations and internal quotation marks omitted).

Respondent challenges the trial court's conclusion that "she has willfully abandoned [Brad] for at least six (6) consecutive months immediately preceding the filing of the petition" for termination of her parental rights, thereby establishing grounds for termination under N.C. Gen. Stat § 7B-1111(a)(7). This Court has held that

[t]o show willful abandonment pursuant to N.C. Gen. Stat. § 7B-1111(a)(7), [the petitioner] must present evidence that Respondent willfully abandoned [the minor child] for at least six consecutive months prior to the filing of the termination petition. . . . "Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child." Willfulness is "more than an intention to do a thing; there must also be purpose and deliberation."
In re S.R.G., 195 N.C. App. 79, 84, 671 S.E.2d 47, 51 (2009) (quoting In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986)).

As petitioners filed their petition on 28 January 2015, the relevant period of inquiry under N.C. Gen. Stat. § 7B-1111(a)(7) is 28 July 2014 until 28 January 2015. The trial court made the following findings of fact describing and contextualizing respondent's conduct toward Brad during this period:

19. Respondent Mother used illegal drugs throughout her pregnancy with [Brad] and after his birth. Following [Brad's] birth she started on a path of criminal activity.

. . . .

21. While [Brad] was still in NICU, . . . [petitioners] obtained an emergency custody order and a temporary custody order . . . which restrained Respondent Mother . . . from being in [Brad's] presence and enjoined [her] from appearing at [petitioners'] address. [Petitioners'] address was set out in the
custody order. Subsequently, in September 2014 [petitioners] obtained permanent custody of [Brad]. Although having been served with notice of hearing, Respondent Mother did not appear at the hearing . . . .

22. . . . [T]he minor child's maternal grandmother, and her husband, . . . were granted visitation with [Brad] every other week from Sunday to Tuesday beginning December 21, 2014. . . .

23. On or about February 2, 2014 [Brad] was released from NICU into the custody of [petitioners]. At no time did Respondent Mother attempt to contact [petitioners]. Respondent Mother claims that she did not know how to contact [petitioners]. . . . [Petitioners'] address was set out in the Rockingham County emergency/temporary custody order. Respondent Mother has not gone to the courthouse to look at the court file nor has she asked her mother for [petitioners'] contact information. Although Respondent Mother has texted [Mrs. C.'s] sister, . . . she has never asked for [petitioners'] contact information or their address.

24. Respondent Mother has incurred substantial criminal charges since [Brad's] birth. She has been jailed since January 2015. . . . Her anticipated release date is late September 2015. In January 2015 she was charged with possession of heroin, possession of drug paraphernalia and possession of benzodiazepines in Guilford County when she was found with a friend . . . in a motor vehicle. The friend's small child was in the car. Respondent Mother pled guilty and was placed on probation.

25. Respondent Mother testified that since she has been incarcerated at Women's Prison in Raleigh, she has participated in the ninety-day (90) DART program which started in June 2015 and that she has attended Narcotics Anonymous meetings. She testified that
her plan upon release is to live with her aunt and uncle . . . [in] Reidsville; look for a job; go to outpatient treatment for her drug abuse; and attend three (3) narcotics anonymous meetings per week for six (6) months.

. . . .

27. Respondent Mother provides no financial support to her [elder] son . . . or to [Brad]. She has sent no cards or letters to [Brad] since he has been with [petitioners] and she has made no inquiry regarding [Brad's] welfare. Although Respondent Mother testified that she gave clothing and gifts to [her mother] for [Brad at] Christmas 2014, she was unsure as to how she obtained them or the source of her funds if she had purchased them.

. . . .

29. Respondent Mother's last job was at Blue Naples Restaurant in 2012 . . . .

. . . .

33. . . . Respondent Mother ha[s] no bond with [Brad].

. . . .

44. [Brad's guardian ad litem] spoke to Respondent Mother at the Rockingham County Jail on May 21, 2015. She admitted that she had been arrested upon possession of heroin while in a vehicle where a small child was present. She told him she did not know how to contact [petitioners].
To the extent respondent does not challenge these findings, we are bound thereby. See In re B.S.O., 234 N.C. App. at 708, 760 S.E.2d at 62.

Respondent concedes she "did not directly contact [p]etitioners or provide them items for Brad's benefit[,]" but insists that "her failure to do so was not willful." In support of her argument, respondent points to her own testimony that she did not know where petitioners lived or how to contact them, and that she had not been employed since 2012. Respondent also points to the lack of record evidence that she was ever served with the 8 January 2014 emergency custody order that listed petitioners' home address.

" 'Whether a biological parent has a willful intent to abandon his child is a question of fact to be determined from the evidence.' " In re S.R.G., 195 N.C. App. at 84, 671 S.E.2d at 51 (quoting Searle, 82 N.C. App. at 276, 346 S.E.2d at 514). We find ample evidence to support the trial court's finding. Contrary to respondent's assertion on appeal, Mrs. C. testified that petitioners communicated with respondent by text message while Brad was in NICU. Both Mrs. C. and her sister averred that respondent had received Mrs. C.'s cell phone number from the sister. Respondent nonetheless had not contacted petitioners to inquire about Brad's welfare since sending Mrs. C. a text message on 16 January 2014. Nor did respondent ever file a motion in the child custody proceeding "to get visitation or to modify [the custody] order in any way[.]" We further note that intervenors had been exercising overnight visitations with Brad since mid-December 2014, and were thus in contact with petitioners.

In her hearing testimony, respondent acknowledged having made no attempt to see Brad since 10 January 2014 but claimed she did not "know how to attempt." She had "heard" petitioners were granted emergency custody of Brad but never attempted to obtain a copy of the court order. Respondent also admittedly knew that her mother and stepfather "were going to court on September the 10th of 2014 for custody of [Brad]" but did not attend the hearing. Respondent even conceded that she "had [Mrs. C's] cell phone number" while denying having sent her any text messages. Given this evidence, her self-serving claim that she had "no way to contact" petitioners does not undermine the court's finding that her failure to inquire about Brad or otherwise attempt to communicate with his custodians was willful.

We reach a similar conclusion regarding respondent's admitted failure to provide petitioners with any money or other support for Brad. Respondent testified that she purchased "[s]ome outfits" and toys for Brad before he was born, and that she had given these items to her mother for Christmas of 2014. Respondent's mother confirmed that respondent had "brought clothes, toys, and stuff for Christmas" for Brad in 2014. These items remained at respondent's mother's house. Other than these previous purchases, however, respondent admitted that she had given "[n]othing" in the form of "moneys or gifts or any items of any sort" to her mother or to petitioners for Brad. Respondent claimed not to have been formally employed since 2012 but acknowledged earning money thereafter from "odd jobs cleaning" and by "[s]elling drugs." She also received food stamps of $150 per month. By her own admission, respondent's focus was financing her drug habit rather than providing for her child. She testified that she was in prison "for breaking and entering and larceny after breaking and entering[,]" having stolen $500 from an acquaintance's home. She had also been banned from Walmart stores in Rockingham County "[f]or stealing."

Respondent also excepts to finding of fact 46, which states the recommendation of Brad's guardian ad litem and summarizes his reasons therefor. This finding is wholly unnecessary to the court's adjudication and is largely reiterative of the court's own affirmative findings about respondent's actions, as set forth above.

We hold the evidence and the trial court's findings are sufficient to establish respondent's willful abandonment of Brad for purposes of N.C. Gen. Stat. § 7B-1111(a)(7). Between 28 July 2014 and 28 January 2015, respondent made no effort to contact petitioners or intervenors to inquire about Brad's well-being. See In re B.S.O., 234 N.C. App. at 713, 760 S.E.2d at 65 ("In light of respondent-father's single phone call to respondent-mother and his children during the six months immediately preceding 9 May 2011, the district court did not err in finding that he willfully abandoned the children."); see also In re Graham, 63 N.C. App. 146, 151, 303 S.E.2d 624, 627 (1983) ("The fact that the respondent was incarcerated for a good portion of this period does not provide any justification for his all but total failure to communicate with or even inquire about his children for whom he professes such concern at this late date."). Nor did respondent seek to modify the September 2014 custody order in order to have contact with her son. Furthermore, aside from providing intervenors with some clothing and toys she had purchased before Brad was born, respondent contributed nothing toward Brad's care, either prior to or during her incarceration. See In re J.L.K., 165 N.C. App. 311, 319, 598 S.E.2d 387, 392 (2004). Accordingly, her argument is overruled.

Because we affirm the adjudication under N.C. Gen. Stat. § 7B-1111(a)(7), we need not review the remaining grounds for termination found by the court under § 7B-1111(a)(1) and (6). See In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426-27 (2003).

II. Disposition

Respondent also claims the trial court abused its discretion under N.C. Gen. Stat. § 7B-1110(a) in electing to terminate her parental rights. "Once a trial court has concluded during the adjudication phase that grounds exist for termination of parental rights, it must decide in the disposition phase whether termination is in the best interests of the child." In re D.R.F., 204 N.C. App. 138, 141, 693 S.E.2d 235, 238 (2010) (emphasis added). "We review the trial court's decision to terminate parental rights for abuse of discretion." In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). In exercising its discretion, the court must consider and make findings about the following criteria, insofar as they are relevant:

(1) The age of the juvenile.

(2) The likelihood of adoption of the juvenile.

(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.

(4) The bond between the juvenile and the parent.

(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.

(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a). "A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." In re S.C.R., 198 N.C. App. 525, 536, 679 S.E.2d 905, 911-12 (citation and internal quotation marks omitted) (emphasis in original), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009).

The trial court's written findings address each of the dispositional factors set forth by subsection 7B-1111(a):

a. [Brad] is twenty (20) months old.

b. [Petitioners] are ready willing and able to have him as their son and toward that end filed a petition for adoption . . . .

c. There is a strong likelihood of adoption and terminating the parental rights of respondent[ and Brad's father]
will aid in accomplishing a long-term plan for [Brad].

d. [Brad's parents] have no bond with [Brad]. . . .

e. There is a strong bond between [Brad] and [petitioners and their daughter].

f. The length of time which would be required for [respondent] to obtain treatment following her release from prison and to demonstrate that she could maintain sobriety and provide a suitable environment in which to properly parent [Brad] and meet his particular needs would cause unreasonable delay which would not be in [Brad's] best interest.
The court expressly determined that "[i]t is in the best interest of [Brad] that the parental rights of [respondent] be terminated pursuant to N.C. Gen. Stat.[]§7B-1110.

The court assigned "little weight" to this factor, in light of the September 2014 custody order forbidding the parents' contact with Brad.

Respondent concedes the trial court "considered the majority of the factors required" by subsection 7B-1110(a). She contends, however, that the court "erred in failing to consider . . . the devastating effect that severing the child's ties with his maternal family will have on Brad" and "in finding that [termination of her parental rights] was necessary to effectuate a permanent plan for Brad." We are not persuaded. Respondent cites to no evidence tending to show that terminating her rights would have a "devastating" impact on Brad or would spell the end of his relationship with her family. The court did not disturb intervenors' visitation rights as established by the September 2014 custody order entered in Rockingham County. Moreover, we will not gainsay the court's assessment that petitioners' adoption of Brad will afford him a degree of stability and permanence not provided by the existing custody order. Having carefully reviewed the evidence, we find no abuse of discretion by the trial court. See In re S.C.R., 198 N.C. App. at 536, 679 S.E.2d at 912 (affirming termination order where "[t]he trial court's findings . . . reflect a reasoned decision based upon the statutory factors listed in N.C.G.S. § 7B-1110(a)").

AFFIRMED.

Judges ELMORE and HUNTER, JR. concur.

Report per Rule 30(e).


Summaries of

In re B. L.C.

COURT OF APPEALS OF NORTH CAROLINA
Jul 19, 2016
No. COA16-135 (N.C. Ct. App. Jul. 19, 2016)
Case details for

In re B. L.C.

Case Details

Full title:IN THE MATTER OF: B.L.C.

Court:COURT OF APPEALS OF NORTH CAROLINA

Date published: Jul 19, 2016

Citations

No. COA16-135 (N.C. Ct. App. Jul. 19, 2016)