Opinion
No. COA12–1430.
2013-06-4
In the Matter of H.S.
Office of the Wake County Attorney, by Deputy County Attorney Roger A. Askew, for petitioner-appellee Wake County Human Services. Windy H. Rose for respondent-appellant father.
Appeal by respondent-father from order entered 10 August 2012 by Judge Margaret Eagles in Wake County District Court. Heard in the Court of Appeals 13 May 2013. Office of the Wake County Attorney, by Deputy County Attorney Roger A. Askew, for petitioner-appellee Wake County Human Services. Windy H. Rose for respondent-appellant father.
Mellonee Kennedy for the guardian ad litem.
HUNTER, JR., ROBERT N., Judge.
Respondent-father (“Respondent”) appeals from an order terminating his parental rights to the juvenile H.S. (“Hank”). Respondent argues the trial court erred by determining two grounds existed to terminate his parental rights. Upon review, we affirm.
“Hank” is a pseudonym used to protect the privacy of the juvenile.
I. Facts & Procedural History
Hank was born on 16 February 2006. Hank's mother and father were married at that time, but separated thereafter.
In February 2009, Hank lived with his father at Restoration Ministries, an adult group home in Raleigh. Hank's mother lived in a motel in Raleigh. On 2 February 2009, Wake County Human Services (“WCHS”) received an Intake Report alleging: (i) Respondent had left an “adult size bite mark” on Hank's arm; and (ii) Respondent appeared intoxicated when he picked up Hank from day care. Subsequently, WCHS initiated an investigation.
During the investigation, Hank's father initially maintained custody of Hank. His mother had sporadic supervised visitation with her son. These visits ended when Hank's mother moved out of the Raleigh motel in which she had been staying in mid-July 2009. In August 2009, Hank's mother told WCHS that she was moving to Johnston County to find stable housing.
About the same time in July 2009, Respondent left Restoration Ministries and moved to a friend's apartment with Hank. Simultaneously, Respondent requested WCHS to take Hank and place him with a family in the Safety Resource program so Respondent could “get on his feet.” Subsequently, Hank was moved and placed with a Raleigh family in August 2009. Around November 2009, Hank moved yet again to be placed with his mother and her new boyfriend because she had obtained safe and stable housing in Johnston County.
Also, Respondent's friends reported he continued to have problems with alcohol.
Four months later, Hank's mother placed him back with Respondent because she had been evicted from her new home; she later told WCHS she was living in a car behind a Wal–Mart. In June 2010, WCHS investigated and determined that Respondent's home at that time was safe for Hank; it also noted Respondent had a job with Piper Pest Control.
After an August 2010 report to WCHS that Respondent came to work intoxicated, WCHS established a safety plan requiring Respondent to attend: (i) a parenting class; (ii) a mental health assessment; and (iii) a physical exam. The safety plan also required Respondent to: (i) ensure Hank received a medical exam; (ii) maintain employment; and (iii) reacquire his driver's license. Hank was temporarily placed with Barbara Yarborough, a worker at Restoration Ministries. Although the safety plan required Respondent to assist Ms. Yarborough by transporting Hank to and from day care and medical appointments, Respondent failed to do so.
Hank's mother has had little contact with Hank since June 2010. She also has another child with another man whom she has not contacted in over six years. Around June 2010, Hank's mother moved with her boyfriend to a trailer in New Hanover County. According to WCHS, the trailer is not a safe or suitable home for Hank. Hank's mother is unemployed, but she told WCHS her boyfriend works at Burger King.
Respondent failed to make progress on the safety plan. In the fall of 2010 Respondent again contacted WCHS to say he could not safely parent Hank. On 27 January 2011, WCHS filed a petition alleging Hank was neglected and dependent. That same day, the Wake County District Court placed Hank in non-secure custody with WCHS. WCHS subsequently placed Hank in a Wake County foster home. While Hank was in the foster home, Respondent visited him for his birthday.
On 21 April 2011, the Wake County District Court entered an order adjudicating Hank dependent because “the parents [are] unable to provide appropriate care and supervision of the child and lack[ ] an appropriate alternative care arrangement.” The order required Respondent to: (i) complete an updated psychological evaluation and follow through with all recommendations; (ii) complete a substance abuse assessment and follow through with all recommendations, including Alcoholics Anonymous; (iii) establish and maintain safe and stable housing; (iv) complete a parenting class and demonstrate knowledge acquired in the class during his interactions with Hank; and (v) consistently adhere to the established visitation plan.
On 18 July 2011, the district court entered an amended order establishing a concurrent permanent plan of adoption or guardianship with a relative; it also ordered WCHS to cease reunification efforts with the parents. It specifically noted: (i) Respondent did not consistently comply with prior reunification requirements; and (ii) Respondent only sporadically visited Hank. On 12 December 2011, the district court amended the permanent plan to adoption only.
On 28 February 2012, WCHS filed a motion to terminate both parents' parental rights. The motion alleged three grounds for termination: (i) neglect; (ii) willful failure to make reasonable progress; and (iii) dependency. N.C. Gen.Stat. § 7B–1111 (a)(1), (2), and (6) (2011). On 5 July 2012, the trial court held a termination hearing. Respondent did not attend, and the trial court denied his motion to continue. The only witness was social worker Tracey Freeman. Respondent's counsel cross-examined Freeman, but did not offer any evidence. The trial court ultimately concluded: (i) grounds existed to terminate Respondent's parental rights based on neglect and willful failure to make reasonable progress; and (ii) termination of Respondent's parental rights was in Hank's best interest. On 10 September 2012, Respondent filed timely notice of appeal.
Although the trial court also terminated the mother's parental rights, she is not a party to this appeal.
II. Jurisdiction & Standard of Review
This Court has jurisdiction to hear the instant case pursuant to N.C. Gen.Stat. § 7B–1001(a)(6) (2011) (stating that “appeal of a final order of the court in a juvenile matter shall be made directly to the Court of Appeals” when the order “terminates parental rights”).
There is a two-step process in a termination of parental rights proceeding. In the adjudicatory stage, the trial court must establish that at least one ground for the termination of parental rights listed in [N.C. Gen.Stat. § 7B–1111] exists.... Once one or more of the grounds for termination are established, the trial court must proceed to the dispositional stage where the best interests of the child are considered. There, the court shall issue an order terminating the parental rights unless it further determines that the best interests of the child require otherwise.
In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001) (internal citations omitted).
For the trial court's adjudicatory determination, “[t]he standard for appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings of fact support its conclusions of law.” In re C.C., 173 N.C.App. 375, 380, 618 S.E.2d 813, 817 (2005). Clear, cogent and convincing evidence requires more proof than the “preponderance of the evidence” standard but less than the “beyond a reasonable doubt” standard. Bost v. Van Nortwick, 117 N.C.App. 1, 13–14, 449 S.E.2d 911, 918 (1994).
The “clear, cogent and convincing” standard is synonymous with the “clear and convincing” standard used in some cases. Blackburn, 142 N.C.App. at 610, 543 S.E.2d at 908.
We review adjudicatory conclusions of law de novo. In re D.H., 177 N.C.App. 700, 703, 629 S.E.2d 920, 922 (2006). “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quotation marks and citation omitted).
We review the trial court's dispositional “best interests of the child” determination for abuse of discretion. See In re S.F., 198 N.C.App. 611, 614, 682 S.E.2d 712, 715–16 (2009); In re A.R.H .B., 186 N.C.App. 211, 218, 651 S.E.2d 247, 253 (2007). “Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
III. Analysis
On appeal, Respondent argues the trial court erred by terminating his parental rights based on: (i) neglect; and (ii) willful failure to make reasonable progress. We disagree. Because we base our decision on the trial court's neglect determination, we address that issue first.
North Carolina's general statutes define a neglected juvenile as “[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; ... or who lives in an environment injurious to the juvenile's welfare[.]” N.C. Gen.Stat. § 7B101(15) (2011); see alsoN.C. Gen.Stat. § 7B–1111 (a)(1). Evidence of a parent's substance abuse, lack of employment, and failure to obtain stable housing is sufficient to support a neglect determination. In re S .C.R., 198 N.C.App. 525, 535, 679 S.E.2d 905, 911 (2009).
“Neglect must exist at the time of the termination hearing[.]” In re C.W. & J.W., 182 N.C.App. 214, 220, 641 S.E.2d 725, 729 (2007). When “the parent has been separated from the child for an extended period of time, the petitioner must show that the parent has neglected the child in the past and that the parent is likely to neglect the child in the future.” Id. To this effect:
[o]ur Supreme Court has held that evidence of neglect by a parent prior to losing custody of a child—including an adjudication of such neglect—is admissible in subsequent proceedings to terminate parental rights. However, termination of parental rights for neglect may not be based solely on conditions which existed in the distant past but no longer exist. 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.
In re Manus, 82 N.C.App. 340, 348, 346 S.E.2d 289, 294 (1986) (emphasis in original) (quotation marks and internal citations omitted).
The trial court must base its neglect determination on the evidence presented. “When the trial court is the trier of fact, the court is empowered to assign weight to the evidence presented at the trial as it deems appropriate.” In re Oghenekevebe, 123 N.C.App. 434, 439, 473 S.E.2d 393, 397 (1996). “[F]indings of fact made by the trial court ... are conclusive on appeal if there is evidence to support them.” In re H.S.F., 182 N.C.App. 739, 742, 645 S.E.2d 383, 384 (2007) (alteration and omission in original) (quotation marks and citation omitted). “Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991); see also In re S.D.J., 192 N.C.App. 478, 486, 665 S.E.2d 818, 824 (2008).
In the present case, Respondent argues the trial court erred in terminating his parental rights based on neglect. Specifically, Respondent argues the trial court could not terminate his parental rights based on neglect because: (i) he did not have custody of Hank at the time of the termination hearing; and (ii) there had not been a prior adjudication of neglect. This argument represents a misunderstanding of the relevant law.
Contrary to Respondent's argument, a prior neglect adjudication is not needed to terminate parental rights based on neglect, even when the parent does not have custody at the time of the termination hearing. In fact, we have explicitly held that the existence of a prior neglect adjudication is not “determinative on the issue of neglect at the time of the termination proceeding.” In re Garner, 75 N.C.App. 137, 139, 330 S.E.2d 33, 35 (1985) (citation omitted). Instead, a prior neglect adjudication is simply admissible evidence of prior neglect; it may be considered along with evidence of the parent's current behavior and the likelihood of a repetition of neglect. See id.
Here, because there was no prior neglect adjudication, the trial court's factual findings must identify specific prior instances of neglect. Upon review, we determine the trial court met this burden. For instance, the trial court found Respondent had: (i) made a bite mark on Hank's arm; and (ii) picked Hank up from day care while intoxicated. When Hank was later returned to Respondent's care, Respondent requested Hank be placed with a Safety Resource so Respondent could “get on his feet.” Additionally, the trial court found Respondent “made little progress” in completing the 2010 WCHS safety plan. Similarly, the trial court found Respondent failed to comply with the April 2011 adjudication and disposition order when he did not complete a psychological evaluation, substance abuse assessment, or parenting class. In December 2011, Respondent also refused to allow a social worker to evaluate his home. Finally, based on Respondent's prior acts, the trial court found: (i) Respondent had a history of neglecting Hank's needs; and (ii) his behavior demonstrated it was likely he would continue to neglect Hank. Since Respondent does not challenge any of these findings, they are binding on appeal. S.D.J., 192 N.C.App. at 486, 665 S.E.2d at 824.
In light of these unchallenged factual findings, we determine the trial court properly concluded: (i) Hank had previously been neglected; and (ii) the neglect was likely to be repeated if Hank was returned to Respondent's care. A prior neglect adjudication was not necessary for the trial court to make these conclusions. Therefore, we hold the trial court properly terminated Respondent's parental rights based on the ground of neglect.
Although the trial court concluded two grounds existed to terminate Respondent's parental rights, we need not address the trial court's second ground for termination since we determine it did not err in terminating based on neglect. See In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 426 (2003) (holding that a conclusion that one statutory ground exists is sufficient to support the termination of parental rights). Consequently, we affirm the trial court's order terminating Respondent's parental rights.
IV. Conclusion
For the foregoing reasons, the trial court's order is AFFIRMED. Judges STROUD and DILLON concur.
Report per Rule 30(e).