Opinion
No. COA12–9.
2012-07-3
In the Matter of E.A.C., G.A.L., J.D.H.C.
J. Edward Yeager, Jr., for petitioner-appellee Martin County Department of Social Services. Pamela Newell for guardian ad litem.
Appeal by respondent from orders entered 7 September 2011 by Judge Christopher B. McLendon in Martin County District Court. Heard in the Court of Appeals 12 June 2012. J. Edward Yeager, Jr., for petitioner-appellee Martin County Department of Social Services. Pamela Newell for guardian ad litem.
Levine & Stewart, by James E. Tanner, III, for respondent-appellant mother.
HUNTER, ROBERT C., Judge.
Respondent appeals from the trial court's orders terminating her parental rights to the minor children and contends the court erred in concluding she neglected the children and failed to make reasonable progress to correct the conditions which led to their removal. She also challenges the trial court's determination that termination is in the best interests of the children. We reverse.
I. Background
Respondent is the mother of daughter J.D.H.C., born in 2000, and sons G.A.L., born in 2002, and E.A.C., born in 2006. In October 2006, Beaufort County Department of Social Services developed a safety plan with respondent to place the children with respondent's father and stepmother while respondent worked on addressing her substance abuse issues and stabilizing her living situation.
The parental rights of the children's fathers were also terminated; however, none of the fathers appealed, and therefore they are not parties to this appeal.
On 7 March 2007, Martin County Department of Social Services (“DSS”) filed juvenile petitions alleging each of the three children to be neglected after respondent physically attacked her stepmother in the presence of two of the children, and one of the children was scratched in the face during the altercation. Respondent was arrested and charged with simple assault as well as forgery for stealing checks from her stepmother. DSS was granted non-secure custody of the children, who initially remained in their relative placement, but were later moved to foster care.
On 9 July 2007, the trial court entered an order adjudicating the children neglected. On 29 August 2008, the trial court authorized a concurrent permanent plan of reunification and legal guardianship, although this plan was changed on 13 November 2008 to a plan of only reunification with respondent. In December 2008, respondent was granted unsupervised visitation every other Saturday. Respondent was then granted overnight unsupervised visits with her sons beginning in February 2009, and with her daughter beginning in April 2009. All three children were returned to respondent in a trial placement on 20 August 2009. During the placement, J.D.H.C. and G.A .L. both missed several days of school, and respondent forgot to give G.A.L. medicine for a week. The placement was terminated on 22 October 2009 following an incident on the previous day in which respondent and a neighbor were arguing. During the argument, J.D.H.C. struck the neighbor, who turned and hit the girl twice. According to DSS, respondent then “attacked” the neighbor, although no arrests were made and no charges were filed. After a hearing held on 27 October 2009, the court ceased reunification efforts and changed the permanent plan to adoption with a concurrent plan of guardianship. At a 19 January 2010 hearing, the trial court directed DSS to file petitions to terminate parental rights.
On 14 February 2011, DSS filed petitions to terminate respondent's parental rights to the children, and alleged the following grounds: (1) neglect; (2) willful failure to make reasonable progress; and (3) willful failure to pay a reasonable portion of the costs of care for the children. The matter was heard on 10 May 2011. The trial court found by clear, cogent, and convincing evidence that grounds existed to terminate respondent's parental rights to the children based on neglect and failure to make reasonable progress. The trial court also determined that termination was in the best interests of the children, and ordered respondent's parental rights be terminated. Respondent appeals.
II. Standard of Review
“The standard for 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.” In re Clark, 72 N.C.App. 118, 124, 323 S .E.2d 754, 758 (1984).
III. Grounds for Termination
Respondent challenges both grounds for termination as being unsupported by the evidence or findings of fact. The trial court made the following findings of fact regarding grounds:
The trial court entered a separate termination order for each child. The listed findings of fact are taken from file number 07–JT–18; identical findings appear in the orders for file numbers, 07–JT–19 and 07–JT–20. The termination order in 07–JT20 has two additional findings of fact that are not included in 07–JT–18 and 07–JT–19; these two additional findings are not relevant to this analysis and have been omitted.
[5.] That the above child was found to be a neglected juvenile on June 12, 2007 by this Court and said Order and its findings of fact and conclusions of law are before the Court in File[s] [07–JA–18 to 20] and that the child was neglected in part because the mother had a history of not providing proper supervision, proper environment, proper care and proper discipline for the child and had had numerous criminal charges against her and had been incarcerated and had attempted suicide, and had ultimately been incarcerated in Raleigh Women's Prison and therefore had been unable for a period of time, even with the assistance of Beaufort County DSS and Martin County DSS, to provide a proper environment to raise a child, as is more particularly set out in prior Orders in this matter.
[6.] That Martin County DSS worked for a long period of time with [respondent] by providing services, recommendations for service providers, providing visitation, and for a period of time in late 2009 allowed a trial home placement, but once again the issues regarding providing stability and a proper environment came to light again and the child was removed and on October 27, 2009 reunification efforts with the mother were ceased and the permanent plan for the child became adoption or legal guardianship with an approved Court appointed caretaker.
[7.] That [respondent] continues to have issues in criminal [c]ourt in Martin County and adjoining counties.
[8.] That the mother has given several addresses as her address and Martin County DSS is not really sure where she is living at this time and further that her employment circumstances seem to be sporadic.
[9.] That [respondent] does contact Martin County DSS sporadically, but has not shown any degree of stability in her life as evidenced by her several addresses and her continued contact with the criminal [c]ourt system.
[10.] That over a period of 4 years Martin County DSS has worked with [respondent] and she has never had stable housing of her own for any extended period of time and that the current charges, which are part of the public record show more than one address as her address and she recently informed Martin County DSS that she was living with her step grandfather which is another address.
[11.] That there were many reviews of this matter and the child was in the custody of Martin County DSS for an extended period of time while they worked with [respondent] in an effort to assist her to provide a stable situation for her children, but she has been unable to do so.
We now look at whether the findings, and the evidence upon which they are based, are sufficient to support the grounds found by the trial court.
A. Neglect
A parent's rights to a child may be terminated pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) where the child is determined to be neglected as defined in section 7B–101(15). A neglected juvenile is defined in part as one “who does not receive proper care, supervision, or discipline from the juvenile's parent,” or “who lives in an environment injurious to the juvenile's welfare [.]” N.C. Gen.Stat. § 7B–101(15) (2011). The appellate courts have interpreted this definition as requiring “some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide proper care, supervision, or discipline [.]” In re McLean, 135 N.C.App. 387, 390, 521 S.E.2d 121, 123 (1999) (internal quotation marks and citation omitted). Termination may “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, where the child has been out of the parent's custody for some time prior to the termination hearing, as is the case here, “[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.” In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). “The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding.” Id.
Here, the trial court found that the children were adjudicated neglected on 12 June 2007. Respondent contends that no evidence was presented that such neglect was continuing at the time of the termination hearing, or that a risk existed of repetition of past neglect. She argues the court erred in finding that she had continuing contact with the criminal system, since her actual criminal records were not introduced into evidence, and her criminal charges were incurred prior to the trial home placement in late–2009. She also asserts that no competent evidence was introduced regarding her housing or employment, and notes that the social workers testified they did not know her recent circumstances in these areas. Finally, she asserts that there was no evidence of actual or potential impairment of the children due to ongoing neglect or that there was a risk of repetition of past neglect as required to meet the definition of neglect under N.C. Gen.Stat. § 7B–101(15). We agree that the trial court's adjudication findings are insufficient to support a conclusion of neglect as a basis for terminating respondent's parental rights, as they contain vague phrases which do not establish a basis for the ground of neglect. We also agree that there is insufficient evidence from which adequate findings of fact could be made.
Regarding respondent's alleged criminal conduct, the court found that she “continues to have issues in criminal [c]ourt” without specifying what the word “issues” refers to, including any particular criminal charges, when any charges were incurred, and whether respondent was convicted. Although no criminal records were formally introduced into evidence, social worker Susan Manning testified, apparently from a record printout and over respondent's objection, that respondent had pending charges from Martin and Beaufort Counties, and stated that one of the charges was for obtaining a prescription by fraud or forgery and another was for driving without a license, although she did not state when the charges were incurred. She also testified that respondent had served fifty days in prison in 2010 for a larceny. No other information was provided regarding respondent's contact with the criminal system. Both the evidence at the termination hearing and the factual findings made therefrom lack the necessary specificity from which the trial court could conclude that respondent's criminal activity is a basis for terminating her parental rights.
Our review of the record reveals that in 2007 respondent had pending charges of forgery and uttering, and that year she was charged with simple assault. It is unclear whether these charges were resolved, but respondent was incarcerated for several months in 2007. Respondent was charged in early 2008 for driving while impaired; this charge appears to have remained pending into 2010. Respondent was incarcerated from May to September 2008 for a probation violation. The larceny referred to by Ms. Manning was from early 2009, before the children were placed in respondent's home in the trial placement, and it appears she served fifty-one days on that charge beginning in late-November 2009. It appears that the trial court was aware of respondent's various charges when it approved a trial home placement in August 2009.
Regarding criminal activity after the trial home placement, a DSS report dated 3 August 2010 states that respondent was given thirty days for non-payment of child support in 2010, and that she was also jailed for failure to appear at a hearing on the 2008 DWI case. Another DSS report, dated 12 April 2011, refers to “pending traffic cases” in Beaufort and Pitt Counties, but no specific details are included. The same report also refers to a charge in Martin County for obtaining a substance by fraud or forgery, but again, no details are given.
We note that if the only charges that were still pending as of the date of the termination hearing were incurred prior to the trial home placement from August to October 2009, as respondent contends, it would seem to be inconsistent for the trial court to have allowed a trial placement with knowledge of respondent's pending charges, and then later to use those same charges as a basis for terminating respondent's parental rights. The record does make reference to a couple of charges respondent may have incurred after the trial placement; however, no specific, competent evidence was introduced about these or any charges at the termination hearing. Therefore, we conclude that the trial court erred in finding that respondent “continues to have issues in criminal [c]ourt,” and in using this unclear finding to support termination of her parental rights.
With regard to the court's findings of lack of stability in respondent's life, the court addressed employment by finding that respondent's “employment circumstances seem to be sporadic.” This vague finding is the sole statement regarding employment, and we conclude the lack of specificity renders the finding insufficient to use as a basis for showing that neglect was ongoing at the time of the termination hearing or that a risk of repetition of past neglect exists. Further, the evidence presented sheds little light on the matter. Social worker Mandy Dupree, who only worked with the family until the trial placement took place in August 2009, testified at the termination hearing that the only job respondent told her about was picking and selling strawberries. However, once reunification efforts ceased in late–2009, Ms. Dupree had no more contact with respondent. Ms. Manning did not testify regarding respondent's employment at all. When Ms. Manning was asked if respondent had provided any information that she had a plan or financial means to care for the children, Ms. Manning responded that once reunification efforts were ceased, there was no reason for her to check on respondent, although she did have some contact with her by phone and some office visits. The DSS report submitted to the court stated, “To our agency knowledge, [respondent] is not working ...” However, it is not clear whether DSS had reliable information about respondent's employment status at the time of the termination hearing. Thus, without further detail, the trial court erred in using this finding of fact to support a conclusion of neglect.
The trial court's findings on respondent's housing are also lacking in detail. The court found that respondent had “several addresses,” but also found that “DSS is not really sure where she is living at this time[.]” Given that DSS is the petitioner in this case and therefore has the burden of proving by clear, cogent, and convincing evidence that grounds to terminate exist, a finding stating that the petitioner “is not really sure” of a particular fact would indicate a failure to carry its burden. The evidence presented at the hearing bears this out. Ms. Dupree testified that she did not know anything about where respondent lived or her home situation since she stopped working with respondent after the trial placement ended. She did mention that in February 2011, respondent indicated at a team meeting that she was living with a friend in Greenville, but DSS did not view that location or do a home study because reunification efforts had ceased. Ms. Dupree confirmed that the last time she visited respondent's home was in September 2009.
Ms. Manning testified that after the trial placement ended, she had phone contact with respondent and occasionally saw her at office visits and team meetings, but once reunification efforts ceased, she had “no reason” to visit respondent. The address that DSS regularly used for notices was one in Grimesland where respondent's step-grandfather lived. Aside from her own knowledge, Ms. Manning referred to printed criminal records which were not formally introduced into evidence. From the records, Ms. Manning noted that the step-grandfather's address was listed, as well as an address in Greenville. Otherwise, Ms. Manning had no direct knowledge of respondent's living situation at the time of the termination hearing.
Thus, the evidence regarding respondent's housing consists of indirect knowledge of two different addresses as testified to by a social worker referring to criminal records. Without deciding whether the information contained in the records was properly admitted, which respondent does not present as an argument in her brief, we conclude that the information is not specific enough to utilize as a basis for finding the ground of neglect. No detail was given regarding when respondent lived at each address or for how long. Further, the court's finding that respondent lived at “several addresses” is not supported where the meager evidence only referred to two addresses, hardly an egregious number. The court's finding that respondent “has never had stable housing of her own for any extended period of time” also appears to be without support, particularly since her housing was presumably deemed adequate enough to place the children with her on a trial basis in 2009. Since no information was presented regarding changed circumstances or respondent's living situation at the time of the hearing, we conclude that the trial court's findings of fact regarding respondent's housing are insufficient to show that neglect was continuing at the time of the termination hearing or that a risk of repetition of neglect is likely.
Finally, besides lacking sufficient findings of ongoing neglect at the time of the hearing, we note that the trial court's orders fail to include any findings determining that a repetition of neglect will occur if the children are returned to respondent's care. Thus, the trial court erred in terminating respondent's parental rights on the ground of neglect.
B. Failure to Make Reasonable Progress
To terminate a parent's rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2) (2011), it must be shown by clear and convincing evidence that the parent (1) willfully left the child in placement outside the home for more than twelve months, and (2) as of the time of the termination hearing, failed to make reasonable progress under the circumstances to correct the conditions that led to the child's removal. In re O.C., 171 N.C.App. 457, 464–65, 615 S.E.2d 391, 396,disc. review denied,360 N.C. 64, 623 S.E.2d 587 (2005). The trial court's order must contain adequate findings of fact as to whether the parent acted willfully and as to whether the parent made reasonable progress under the circumstances. In re C.C., 173 N.C.App. 375, 384, 618 S.E.2d 813, 819 (2005). We have stated that “[w]illfulness is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort.” In re McMillon, 143 N.C.App. 402, 410, 546 S.E.2d 169, 175 (citation omitted), disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001). “A finding of willfulness is not precluded even if the respondent has made some efforts to regain custody of the children.” In re Nolen, 117 N.C.App. 693, 699, 453 S.E.2d 220, 224 (1995).
As we have already determined that the trial court's findings of fact are vague and insufficient to show neglect, so the findings are similarly inadequate to demonstrate willfulness on the part of respondent to correct the conditions which led to the removal of the children. The findings regarding respondent's criminal activity, employment, and housing lack the necessary specificity to support a conclusion that respondent failed to make reasonable progress such that her parental rights should be terminated on this basis, and we conclude that the trial court erred in finding this ground for termination.
IV. Conclusion
We conclude the trial court erred in terminating respondent's parental rights on the grounds of neglect and failure to make reasonable progress. Accordingly, the orders of the trial court are reversed. Although respondent also raises arguments challenging the trial court's determination of the best interests of the minor children, our decision to reverse the orders on grounds obviates the need for us to address the best interests issues.
Reversed. Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).