Opinion
No. COA 15-1023
04-05-2016
IN THE MATTER OF: D.B. and B.B.
Holly M. Groce for petitioner-appellee Davie County Department of Social Services. J. Thomas Diepenbrock for respondent-appellant father. Laura Bodenheimer 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Davie County, Nos. 11 JT 31-32 Appeal by respondent-father from order entered 1 June 2015 by Judge Carlton Terry in Davie County District Court. Heard in the Court of Appeals 14 March 2016. Holly M. Groce for petitioner-appellee Davie County Department of Social Services. J. Thomas Diepenbrock for respondent-appellant father. Laura Bodenheimer for Guardian ad Litem. HUNTER, JR., Robert N., Judge.
Respondent-father appeals from the trial court's order terminating his parental rights to D.B. ("Deborah") and B.B. ("Ben"). After careful review, we affirm.
Pseudonyms are used to protect the identity of the juveniles and for ease of reading.
I. Factual and Procedural Background
On 23 September 2011, the Davie County Department of Social Services ("DSS") took Deborah and Ben into non-secure custody and filed a juvenile petition alleging they were neglected and dependent. According to the petition, DSS became involved with the family following a report on 15 August 2011. In the course of its investigation, DSS learned the parents had an ongoing history of domestic violence, despite living apart at the time of the report. The petition alleged the children were present during a domestic dispute in August 2011. According to the petition, Deborah reported respondent-father choked her mother, that she was fearful of him, and that she did not want to live with him. The mother obtained a domestic violence protective order ("DVPO") against him and moved into a women's shelter. Three days later, she left the shelter. On 22 September 2011, Deborah reported that respondent-father was living in the mother's home. The mother told a social worker that she was dependent on him and planned to drop the DVPO. Lastly, DSS alleged the family had a similar history with DSS in Alexander County.
The trial court entered an order on 19 December 2011, adjudicating Deborah and Ben neglected and dependent based on the consent of the parties. In a separate disposition order, the trial court kept the children in DSS custody and ordered respondent-father to comply with various directives.
On 17 September 2014, DSS filed a petition to terminate respondent-father's parental rights to Deborah and Ben, alleging the following grounds for termination: (1) neglect; and (2) failure to make reasonable progress towards correcting the conditions that led to removal. See N.C. Gen. Stat. § 7B-1111(a)(1)-(2) (2013). Following a hearing, the trial court entered an order on 1 June 2015 terminating respondent-father's parental rights based upon both grounds alleged by DSS. The trial court also concluded it was in the children's best interest to terminate respondent-father's parental rights. Respondent-father appeals. The trial court also terminated the mother's parental rights, but she does not appeal.
II. Jurisdiction
Jurisdiction lies in this Court as of right pursuant to N.C. Gen. Stat. § 7A-27.
III. Standard of Review
We review the trial court's order to determine "whether the trial court's findings of fact were based on clear, cogent, and convincing evidence, and whether those findings of fact support a conclusion that parental termination should occur[.]" In re Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393, 395 (1996) (citation omitted).
IV. Analysis
A. Termination of Parental Rights
Pursuant to N.C. Gen. Stat. § 7B-1111(a), a trial court may terminate parental rights upon a finding of one of eleven enumerated grounds. If this Court determines that the findings of fact support one ground for termination, we need not review the other challenged grounds. In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003).
We conclude that the trial court's findings of fact are sufficient to support termination of respondent-father's parental rights pursuant to Section 7B-1111(a)(1), which provides for termination based upon a finding that "[t]he parent has . . . neglected the juvenile." N.C. Gen. Stat. § 7B-1111(a)(1) (2013). "The juvenile shall be deemed to be . . . neglected if the court finds the juvenile to be . . . a neglected juvenile within the meaning of G.S. 7B-101." Id. Neglect, in turn, is defined as follows:
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) (2013). 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); see also In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). However, "[w]here, as here, a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect." In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (internal citation omitted). Because the determinative factor is the parent's ability to care for the child at the time of the hearing, "requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible." Id. at 286, 576 S.E.2d at 407 (internal citation omitted). Under such circumstances, "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." Ballard, 311 N.C. at 713-714, 319 S.E.2d at 231. However, the prior adjudication of neglect, standing alone, does not support termination. "The 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, a trial court may terminate parental rights based upon prior neglect of the juvenile only if "the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to her parents." In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).
The following findings of fact address this ground for termination:
9. Clear and convincing facts exist which are sufficient to terminate the parental rights of Respondent Parents as follows:
. . .
c. The minor children were adjudicated neglected and dependent juveniles by Order conducted on November 21, 2011 and Order filed on December 19, 2011.
. . .
h. The Court ordered Respondent Father to abide by the Domestic Violence Order, participate in a Domestic Violence offender
assessment and follow all recommendations, obtain a mental health assessment and follow all recommendations, attend anger management classes, obtain a source of income, obtain and maintain housing, attend parenting classes and follow the recommendations.
. . .
o. There is a likelihood of repeated neglect and dependency in that this was already the second time the children were removed from Respondent Parents due to domestic violence and the children were again placed back in this situation.
p. Respondent Father was the perpetrator of [ ] domestic violence in the prior adjudication in Alexander County and the current adjudication in Davie County. He currently has pending criminal charges of failing to Register as a Sex Offender, the same charge for which he was incarcerated for 18 months during the life of this case. He also has charges pending for Possession of a Firearm by a Felon and Communicating Threats.
. . .
s. Respondent Father did not have a good relationship with social worker Crista Ramroop. However, social worker Ramroop still worked his case as ordered by the court. Respondent Father missed 18 of his 25 afforded visits prior to being incarcerated. Respondent Father was belligerent with the social worker and often cursed and called her derogatory names before terminating the call.
t. Respondent Father had a good working relationship with social worker Alisha Uribe. Despite promises to make efforts, Respondent Father did not attend mental health counseling or substance abuse counseling. Respondent Father attended a parenting assessment in 2014. That assessment recommended therapy which Respondent Father did not attend.
. . .
v. The last time Respondent Father saw [Ben] was on May 11, 2012. The last time Respondent Father saw [Deborah] was on November 9, 2012. Following his release from incarceration, Respondent Father filed a Motion for Visitation which was denied by this Court.
Of these findings, respondent-father challenges only number 9(o). We therefore presume that the remaining quoted findings of fact are supported by competent evidence, and consequently, they are binding on appeal. See In re M.D., 200 N.C. App. 35, 43, 682 S.E.2d 780, 785 (2009).
Respondent-father argues finding of fact 9(o) is not supported by the evidence because he and the mother were divorced at the time of the termination hearing and, consequently, there was no longer a likelihood of repeated domestic violence. We disagree. Finding of fact 9(o) is one of several evidentiary findings of fact in support of the trial court's ultimate finding that termination was justified based on neglect. In finding number 9(o), the court found that this was the second time the children were removed from their parents' home due to domestic violence, and that this fact supported the ultimate finding that repetition of neglect was likely if the children were returned to respondent-father's custody. It was well within the trial court's discretion, as finder of fact, to draw this inference. Furthermore, a divorce, standing alone, does not eliminate the possibility that respondent-father would act violently toward the mother or another individual. Indeed, it appears that respondent-father and the mother were living apart at the time the original juvenile petition was filed, yet they still engaged in domestic violence. We therefore conclude that finding of fact number 9(o) is supported by clear, cogent, and convincing evidence.
Respondent-father also argues that the evidence does not support neglect as a ground for termination because the trial court did not adequately consider evidence of respondent-father's changed circumstances. Specifically, respondent-father contends that the trial court overlooked the most important factor—the fact that he ended his relationship with the children's mother and therefore eliminated the likelihood of future domestic violence. We are not persuaded.
The findings of fact establish that respondent-father has a long history of domestic violence. We have previously held that a child's exposure to domestic violence may constitute an environment injurious to the juvenile's welfare where such exposure impacts the child, and therefore supports an adjudication of neglect. See In re W.V., 204 N.C. App. 290, 294, 693 S.E.2d 383, 386 (2010); In re D.B.J., 197 N.C. App. 752, 755, 678 S.E.2d 778, 780-81 (2009); In re T.S., 178 N.C. App. 110, 113-14, 631 S.E.2d 19, 22-23 (2006), aff'd per curiam, 361 N.C. App. 231, 641 S.E.2d 302 (2007). The findings also establish that, over the course of his involvement with DSS, respondent-father failed to take advantage of opportunities to change his behavior. During the pendency of the case, he served an eighteen-month sentence for failure to register as a sex offender. By the time of the termination hearing, he had three pending criminal charges. He was again charged with failure to register as a sex offender, and he was also charged with possession of a firearm by a felon and communicating threats. The latter two charges are particularly relevant to the issue of changed circumstances and likelihood of repetition of neglect given respondent-father's history of domestic violence. The findings of fact also show that respondent-father did not attend mental health counseling, substance abuse counseling, or therapy. Based on the foregoing, we are satisfied that the findings of fact support the trial court's conclusion that the children have been neglected and that it is probable there would be a repetition of neglect if the children were returned to the care of respondent-father. Accordingly, we affirm the trial court's order terminating respondent-father's parental rights on the ground of neglect.
B. Time Limitations on Termination Petition
Respondent-father also contends that the trial court erred in terminating his parental rights because (1) the termination petition was filed over ten months after the trial court changed the permanent plan for the children to adoption, and (2) it held the termination hearing 180 days after DSS filed the petition. We address each in turn.
Our Juvenile Code provides certain time limitations in juvenile cases, including timing for filing a termination of parental rights petition. Section 7B-906.1(m) provides the following:
If the court finds that a proceeding to terminate the parental rights of the juvenile's parents is necessary in order to perfect the permanent plan for the juvenile, the director of the department of social services shall file a petition to terminate parental rights within 60 calendar days from the date of the entry of the order unless the court makes written findings regarding why the petition cannot be filed within 60 days. If the court makes findings to the contrary, the court shall specify the time frame in which any needed petition to terminate parental rights shall be filed.N.C. Gen. Stat. § 7B-906.1(m) (2013) (emphasis added). Here, the trial court entered its review order changing the permanent plan on 20 November 2013, and DSS filed its termination petition on 17 September 2014—nearly ten months after the review order. Additionally, the trial court did not make any written findings as to why the petition could not be filed within the 60-day timeframe.
However, "this Court has held that time limitations in the Juvenile Code are not jurisdictional in cases such as this one and do not require reversal of orders in the absence of a showing by the appellant of prejudice resulting from the time delay." In re C.L.C., 171 N.C. App. 438, 443, 615 S.E.2d 704, 707 (2005), aff'd per curiam and disc. review improvidently allowed, 360 N.C. 475, 628 S.E.2d 760 (2006). Respondent-father argues that he was prejudiced because he was denied visitation and, thus, his bond with the children was weakened while the bond with the foster family was strengthened.
We are not persuaded by respondent-father's argument and discern no prejudice to respondent-father in the ten-month delay. First, we note respondent-father's bond was already weakened due to his incarceration and his failure to regularly attend visitation prior to his incarceration. Respondent-father missed 18 of 25 visits prior to his incarceration. Furthermore, contrary to respondent-father's argument, the late filing of the termination petition was arguably beneficial to respondent-father. The permanent plan was changed in November 2013, and respondent-father was released from incarceration three months later, in February 2014. Had the termination petition been filed within the requisite 60 days, it would have been filed prior to respondent-father's release. Thus, the late filing of the petition actually gave respondent-father extra time to work towards reunification, had he availed himself of the opportunity to do so. Respondent-father, however, did not work diligently towards reunification. Accordingly, we conclude that respondent-father failed to show prejudicial error by the trial court based upon the late filing of the termination petition.
Next, respondent-father contends the trial court erred by failing to hold the termination hearing within 90 days of the filing of the petition, as required by N.C. Gen. Stat. § 7B-1109. This section provides:
(a) The hearing on the termination of parental rights shall be conducted . . . no later than 90 days from the filing of the petition or motion unless the judge pursuant to subsection (d) of this section orders that it be held at a later time.N.C. Gen. Stat. § 7B-1109(a), (d) (2013). Here, the trial court began its termination hearing on 16 March 2015, approximately seven months after DSS filed the termination petition. Based on our review of the record, the hearing was continued on at least three occasions because DSS was unable to serve the parents. The proper administration of justice requires both parents, as parties to the action, to be properly served with the termination petition. Accordingly, we discern no prejudicial error on the part of the trial court by failing to hold the termination hearing within the 90-day time limit. We therefore affirm the trial court's order terminating respondent-father's parental rights.
. . .
(d) . . . Continuances that extend beyond 90 days after the initial petition shall be granted only in extraordinary circumstances when necessary for the proper administration of justice, and the court shall issue a written order stating the grounds for granting the continuance.
AFFIRMED.
Judges Davis and Zachary concur.
Report per Rule 30(e).