Opinion
No. COA15-1287
05-03-2016
IN THE MATTER OF: J.W.M.
Henderson County Office of the County Attorney, by Deputy County Attorney Rebekah R. Price, for petitioner-appellee. Jeffrey William Gillette for respondent-appellant mother. Edward Eldred for respondent-appellant father. Poyner Spruill LLP, by Carrie V. McMillan, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Henderson County, No. 14 JT 51 Appeal by respondents from order entered 18 August 2015 by Judge Emily G. Cowan in Henderson County District Court. Heard in the Court of Appeals 13 April 2016. Henderson County Office of the County Attorney, by Deputy County Attorney Rebekah R. Price, for petitioner-appellee. Jeffrey William Gillette for respondent-appellant mother. Edward Eldred for respondent-appellant father. Poyner Spruill LLP, by Carrie V. McMillan, for guardian ad litem. TYSON, Judge.
Respondent-parents appeal from the termination of parental rights to their minor child, J.W.M. We affirm.
I. Background
In 2007, Respondent-mother's first child was adjudicated neglected due to issues of domestic violence, substance abuse, and unfitness of the home. In 2009, Respondent-mother's second child was adjudicated neglected due to her failure to meet the child's medical needs. Guardianship of both children was granted to the maternal aunt and uncle. In 2011, Respondent-mother's third child was adjudicated neglected due to substance abuse and unfitness of the home. Her parental rights were terminated to her third child in 2012.
In July of 2012, the Henderson County Department of Social Services ("DSS") learned that Respondent-mother had given birth to her fourth child, J.W.M. DSS searched for the family for over a year. On 18 July 2013, law enforcement officers responded to a domestic violence call at Respondent-mother's home. Respondent-mother's face was bleeding, and she stated Respondent-father had punched her several times. Respondent-father also assaulted the maternal grandmother. J.W.M. was present in the home at the time of the assaults.
Law enforcement officers learned Respondent-father had left the home with J.W.M. and a rifle. The officers located him hiding in a closet of his mother's home. The rifle, located in Respondent-father's truck, was stolen. In August 2013, Respondent-mother obtained a domestic violence protective order against Respondent-father on behalf of herself and J.W.M. Respondent-father was subsequently convicted of misdemeanor child abuse, assault to inflict serious injury, assault on a female, and felony possession of a stolen firearm.
In December 2013, Respondent-mother submitted to a drug screen requested by DSS, and tested positive for marijuana, amphetamines, and methamphetamines. She subsequently tested negative for controlled substances in January 2014, and failed to submit to drug screens requested by DSS in February and March of 2014.
Respondent-father was arrested for a probation violation in March 2014. DSS learned both Respondent-parents and the juvenile were present when Respondent-father was arrested. The residence was in a deplorable condition. J.W.M., who was a year old, had not had a well-child visit since June of 2013, and was late for his immunizations.
On 21 March 2014, DSS filed a petition alleging J.W.M. was neglected and dependent. The trial court removed the child from the custody of the parents, and placed him in the "nonsecure custody" of DSS. By order entered on 31 July 2014, the trial court adjudicated J.W.M. to be a neglected juvenile.
As a "prerequisite to regain custody or placement," the court ordered Respondent-parents to: obtain substance abuse and mental health assessments and follow all recommendations; complete an anger management and domestic violence prevention program; refrain from acts of domestic violence; demonstrate a stable income and appropriate residence for the child; refrain from criminal activity; maintain regular contact with DSS and the child; pay child support; and, complete a parenting education program.
On 15 May 2015, DSS filed a motion to terminate the parental rights of both parents. Following the termination hearing on 16 July 2015, the court concluded grounds existed to terminate both parents' parental rights. The court concluded both parents had neglected J.W.M., and willfully left J.W.M. in foster care for more than twelve months without showing reasonable progress had been made to correct the conditions which led to his removal. N.C. Gen. Stat. §§ 7B-1111(a)(1)-(2) (2015). In addition, the court concluded the parental rights to another child of Respondent-mother had been involuntarily terminated, and Respondent-mother lacks the ability or willingness to establish a safe home. N.C. Gen. Stat. § 7B-1111(a)(9) (2015). By ordered entered 18 August 2015, the trial court terminated the parental rights of Respondent-mother and Respondent-father. Both parents appeal.
II. Standard of Review
Termination of parental rights proceedings are conducted in two stages: adjudication and disposition. In the adjudication stage, the trial court must determine whether there exists one or more grounds for termination of parental rights under N.C. Gen. Stat. § 7B-1111(a). This Court reviews a trial court's conclusion that grounds exist to terminate parental rights to determine whether clear, cogent, and convincing evidence exists to support the court's findings of fact, and whether the findings of fact support the court's conclusions of law. If the trial court's findings of fact are supported by ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary. However, [t]he trial court's conclusions of law are fully reviewable de novo by the appellate court.In re A.B., ___ N.C. App. ___, ___, 768 S.E.2d 573, 575 (2015) (internal citations and quotations marks omitted).
III. Respondent-Mother's Appeal
Respondent-mother argues the trial court erred by allowing inadmissible and prejudicial evidence at trial, and based its findings of fact on a lack of evidence rather than affirmative evidence.
A. Rule 602
Respondent-mother argues the trial court violated Rule 602 by allowing the social worker to testify without personal knowledge to events prior to the adjudication order. We disagree.
Rule 602 provides in pertinent part:
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.N.C. Gen. Stat. § 8C-1, Rule 602 (2015).
Here, DSS introduced testimony from the social worker, who became involved in this case when J.W.M. was placed in DSS custody in March 2014. Respondent-mother objected to the social worker's testimony regarding events which occurred prior to the social worker's involvement in the case, such as Respondent-mother's history with DSS, past incidents of domestic violence, and Respondent-mother's history of substance abuse. The DSS attorney requested the court take judicial notice of the adjudication order, which showed past neglect. The court properly ruled, "[t]o the extent that that's useful, I will, but it doesn't take the place of actual evidence, so you'll need to present the case regardless."
During cross-examination of the social worker, Respondent-mother's attorney moved to strike portions of the social worker's testimony not based upon her personal knowledge. The court stated:
She's testifying from a previous court order in this matter. To the extent that her testimony was consistent with that order and those findings of fact, she can testify from that. To the extent it elaborated beyond that order and those findings of fact, if that's what she was testifying from, then his objection is sustained and that will not be considered by the Court in this matter.Respondent-mother does not challenge any specific findings of fact.
The trial court took judicial notice of the adjudication order, which showed J.W.M. had been adjudicated neglected in July 2014. "A trial court may take judicial notice of earlier proceedings in the same cause." In re Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991) (citation omitted). The trial court properly found that J.W.M. was adjudicated neglected "based upon issues of domestic violence, criminal behavior on the part of both parents, lack of medical care and provision for the juvenile, deplorable living conditions, and the parents' untreated mental health and substance abuse issues."
Respondent-mother does not challenge the trial court's findings of fact regarding events subsequent to the adjudication under Rule 602. The social worker testified, and the trial court found, Respondent-mother had completed a substance abuse assessment in February 2014, but had failed to comply with treatment recommendations. She had been discharged twice from the substance abuse treatment program for non-compliance.
The trial court found Respondent-mother brought another person's urine specimen with her to the probation office, and attempted to use it for her drug test in September 2014. This incident resulted in a criminal charge for Respondent-mother. The trial court found Respondent-mother was drug tested by her probation officer in October and November of 2014, and January 2015. Those tests were negative. In February 2015, she tested positive for marijuana, methamphetamines, and opiates.
Despite numerous monthly requests by DSS, Respondent-mother has not submitted to drug screens since March 2014. DSS was unable to locate Respondent-mother from January 2015 until her arrest in April 2015. She remained incarcerated at the time of this termination hearing.
The trial court further found Respondent-mother failed to: obtain a mental health assessment or engage in any mental health treatment; attend and complete an anger management/domestic violence prevention program; demonstrate sufficient income to meet the family's needs; maintain an appropriate residence; attend parenting classes; or, demonstrate the ability to provide appropriate care for her child.
Respondent-mother argues the evidence shows DSS had no knowledge of whether she had complied with the requirements set for her to achieve reunification with J.W.M. Respondent-mother argues "[s]uch a lack of evidence does not support grounds for termination, particularly when [respondent-mother] was present in court and DSS could have called her as a witness to testify about what she had or had not done." We disagree.
Respondent-mother was ordered to comply with her case plan to reunite with her child. She was ordered to "demonstrate" a long-term commitment to refrain from the use of drugs, the benefits of mental health and domestic violence treatment programs, a stable income, and the ability to appropriately parent her child. The record shows Respondent-mother's failure to comply with her case plan by providing the social worker with any verification of her compliance with the various components. A parent cannot avoid termination of his or her parental rights by failing to provide any information pertaining to his or her compliance with the court-ordered conditions of reunification.
Where a juvenile has been removed from his parent's custody for a significant period of time, the trial court must 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) (citation omitted). Evidence was presented to support the trial court's findings and conclusion that Respondent-mother has neglected J.W.M. and a probability of neglect would recur if the child were returned to her care.
B. Hearsay
Respondent-mother also argues the trial court erred by allowing the social worker to testify to the contents of documents not in evidence. The social worker testified to information provided to her by Respondent-father's probation officer. She testified that Respondent-father returned to live with Respondent-mother and the maternal grandmother after his release from prison in October 2014.
Respondent-mother objected to the social worker's testimony regarding the information she had received from Respondent-father's probation officer. The court asked the social worker if the information was contained within her "DSS report." She responded that the information was contained within her "dictation," located in her office. The court allowed the testimony under the business records exception to the hearsay rule, N.C. Gen. Stat. § 8C-1, Rule 803(6) (2015).
Presuming arguendo the admission of the hearsay testimony was error, Respondent-mother has failed to demonstrate prejudice to warrant a new hearing. The uncontroverted evidence shows J.W.M. was adjudicated as neglected and the Respondent-mother failed to take any significant steps to achieve reunification. Respondent-mother's arguments are overruled.
IV. Respondent-Father's Appeal
Respondent-father argues: (1) numerous findings of fact are not supported by the evidence; and, (2) the properly supported findings of fact do not support the termination of his parental rights.
A. Findings of Fact
Respondent-father challenges the following findings of fact, and argues they are not supported by clear, cogent, and convincing evidence:
26. Father has not completed any aspect of the Court's requirements as prerequisites to reunification.
. . . .
28. Father has not obtained a mental health or substance abuse assessment or engaged in any treatment.
. . . .
30. Father has not attended anger management/domestic violence prevention classes or parenting classes.
31. Father does not have stable income or safe and appropriate housing. He has lived at the Mission and with various relatives. His whereabouts have been unknown to [DSS] since March 2015.
Respondent-father argues these findings of fact are unsupported by the evidence "because the DSS caseworker last contacted [him] in March 2015, two months before the motion [to terminate parental rights] was filed, and four months before the termination hearing." Because the social worker had no contact with Respondent-father since March 2015, he argues DSS could not have known whether he completed components of his case plan at the time of the termination hearing.
Respondent-father was incarcerated in March 2014, at the time J.W.M. was placed into DSS custody. The record shows he remained incarcerated until 28 October 2014. Pursuant to his case plan, Respondent-father was required to maintain contact with the social worker and provide her with his current contact information. Respondent-father maintained contact with the social worker until 19 March 2015. He attended eight visits with J.W.M., but did not visit his child after 9 March 2015.
The social worker testified she was unable to locate Respondent-father. Respondent-father appeared at the termination hearing and provided no evidence of his completion of any of the court-ordered requirements. As addressed in Respondent-mother's appeal, Respondent-father cannot avoid termination of his rights by ceasing contact with the social worker and refusing to provide documentation to DSS or evidence to the trial court to show his compliance with the court-ordered requirements of his case plan. This argument is overruled.
B. Neglect
Respondent-father concedes the following findings are properly supported by the evidence, but argues they do not support the termination of his parental rights:
10. On June 26, 2014 this juvenile was adjudicated a Neglected Juvenile by this Court based upon issues of domestic violence, criminal behavior on the part of both parents, lack of medical care and provision for the juvenile, deplorable living conditions, and the parents' untreated mental health and substance abuse issues.
. . . .
27. Father was incarcerated from the start of the case until October 28, 2014 when he was released. He was provided with a case plan and services agreement by [DSS].
. . . .
29. Father did not submit to requested drug screens on 5 January 2015, 12 January 2015, and 2 March 2015. [DSS] has been unable to request a drug screen since March 2, 2015 because the father's whereabouts have been unknown to [DSS].
. . . .
32. Father has not kept in consistent contact with [DSS] or provided contact information and has attended only 8 visits with the juvenile since his release from incarceration in October 2014. He has not seen the juvenile since March 9, 2015.
. . . .
33. Father has not demonstrated the ability to provide appropriate care for the juvenile.
34. Father has failed to sign and keep current any and all necessary releases.
35. Both parents have neglected the juvenile within the meaning of Chapter 7B of the North Carolina General Statutes, and there is a substantial probability of the repetition of such neglect were the juvenile placed in the care of either parent.
36. Both parents have willfully left the juvenile in foster care or placement outside the home for more than twelve months without showing that reasonable progress has been made under the circumstances in correcting those conditions which led to [the] need for the removal of the juvenile.
A "neglected juvenile" is one 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) (2015).
Respondent father failed to submit to drug screens, failed to keep DSS informed of his whereabouts, and failed to show compliance with any court-ordered services to achieve reunification with J.W.M. Respondent-father failed to address the conditions which led to J.W.M.'s removal. The uncontroverted findings of fact support the trial court's conclusion that J.W.M. is neglected and that there is a probability of repetition of neglect if he were to be returned to Respondent-father's care. Ballard, 311 N.C. at 715, 319 S.E.2d at 232.
V. Conclusion
The trial court did not err by finding and concluding grounds exist to terminate the parental rights of both parents based upon neglect under N.C. Gen. Stat. § 7B-1111(a)(1). "Having concluded that at least one ground for termination of parental rights exist[s], we need not address the additional ground[s] . . . found by the trial court." In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004) (citation omitted). The trial court's order terminating both Respondent-parents' parental rights to J.W.M. is affirmed.
AFFIRMED.
Judges CALABRIA and HUNTER, JR. concur.
Report Rule 30(e).