Opinion
No. COA15-1224
05-17-2016
IN THE MATTER OF: L.A.S.
Assistant County Attorney David S. Tedder, for Columbus County Department of Social Services, petitioner-appellee. Parker, Poe, Adams & Bernstein, LLP, by Sye T. Hickey, for guardian ad litem. James E. Tanner III for mother, respondent-appellant. David A. Perez for father, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Columbus County, No. 13 JT 45 Appeal by respondents from orders entered 21 July 2015 and 30 July 2015 by Judge Scott Ussery in Columbus County District Court. Heard in the Court of Appeals 18 April 2016. Assistant County Attorney David S. Tedder, for Columbus County Department of Social Services, petitioner-appellee. Parker, Poe, Adams & Bernstein, LLP, by Sye T. Hickey, for guardian ad litem. James E. Tanner III for mother, respondent-appellant. David A. Perez for father, respondent-appellant. BRYANT, Judge.
The trial court did not err in terminating the parental rights of respondents based upon having had their rights to another child terminated and concluding they lacked the ability or willingness to establish a safe home. We affirm the order of the trial court.
On 19 September 2013, the Columbus County Department of Social Services ("DSS") filed a juvenile petition seeking an adjudication that then four-month-old Luke was a neglected and/or dependent juvenile based upon a report alleging his parents had been consuming crack cocaine, he had been burned by a crack pipe, and respondent-mother had been arrested on 13 September 2013, leaving Luke without a suitable alternative caretaker. DSS filed a second petition on 12 November 2013 seeking the same adjudication based upon additional reports alleging that both parents tested positive on multiple dates between 13 September 2013 and 31 October 2013 for cocaine, oxycodone, benzodiazepines, methadone, and/or opiates, and that on or about 8 November 2013, social workers and law enforcement personnel observed respondent-mother in an impaired state while the child was with her. Following a hearing on 6 January 2014, the court adjudicated Luke as a neglected and dependent juvenile based on the petition filed on 12 November 2013.
A pseudonym will be used throughout as the juvenile was a minor child during the pendency of this litigation. N.C. R. App. P. 3.1(b) (2015).
The court subsequently rendered an order on 21 July 2014 relieving DSS of reunification efforts based upon the failure of respondent-parents to make adequate progress on their case plans. On 23 January 2015, the court entered a permanency planning order in which it approved a permanent plan of adoption and directed DSS to proceed with termination of parental rights. On 5 March 2015, DSS filed a petition to terminate the parental rights of respondent-parents on five grounds. The court convened an adjudication hearing on 13 July 2015 and entered an order on 21 July 2015 adjudicating the existence of the following three grounds to terminate parental rights of both parents: (1) willfully leaving the child in foster care for more than twelve months without showing to the satisfaction of the court that reasonable progress had been made under the circumstances in correcting those conditions that led to the removal of the child, N.C. Gen. Stat. § 7B-1111(a)(2) (2015); (2) willfully failing for a continuous period of six months next preceding the filing of the petition to pay a reasonable portion of the cost of care for the child, id. § 7B-1111(a)(3); and (3) their parental rights with respect to another child had been involuntarily terminated, and they lacked the ability or willingness to establish a safe home, id. § 7B-1111(a)(9). The court conducted a disposition hearing on 24 July 2015 and entered an order on 30 July 2015 terminating the parental rights of both parents and directing DSS to proceed with adoption. Both respondents timely appealed.
On appeal, both respondents argue that the trial court erroneously terminated their parental rights based upon all three (3) grounds set forth in its order. However, we primarily address respondents' contention that the trial court erred in terminating their parental rights pursuant to N.C.G.S. § 7B-1111(a)(9). Because, upon review, we find that the trial court did not err in terminating respondents' parental rights based on this ground, we need not address the other two challenges, as only one ground is required to terminate parental rights. In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241, 246 (2005) (citations omitted).
During the adjudication stage of a parental rights termination hearing, "[t]he court shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111 which authorize the termination of parental rights of the respondent." N.C. Gen. Stat. § 7B-1109(e) (2015). If the court determines the existence of one or more grounds for termination of parental rights, the court then proceeds to the disposition phase and decides whether terminating parental rights is in the juvenile's best interest. Id. § 7B-1110(a) (2015). This Court reviews the adjudication order to determine "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 D.R.B., 182 N.C. App. 733, 735, 643 S.E.2d 77, 79 (2007) (quoting In re C.C., 173 N.C. App. 375, 380-81, 618 S.E.2d 813, 817 (2005)). This Court reviews the disposition order to determine "whether the trial court abused its discretion in finding termination to be in the best interest of the child." In re Shepard, 162 N.C. App. 215, 222, 591 S.E.2d 1, 6 (2004) (citation and quotation marks omitted).
Findings of fact in a termination of parental rights order are binding on appeal "where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary." In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984) (citations omitted). Findings of fact that are not specifically challenged on appeal are also binding. In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404 (2005) (citing Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). Furthermore, even if findings of fact are erroneous, reversible error will not result if ample other findings support the court's adjudication. In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006) (citing In re Beck, 109 N.C. App. 539, 548, 428 S.E.2d 232, 238 (1993)).
North Carolina General Statutes § 7B-1111(a)(9) provides that parental rights may be terminated when "the parental rights of a parent with respect to another child of the parent have been terminated involuntarily by a court of competent jurisdiction and the parent lacks the ability or willingness to establish a safe home." N.C.G.S. §7B-1111(a)(9). "Termination under § 7B-1111(a)(9) thus necessitates findings regarding two separate elements: (1) involuntary termination of parental rights as to another child, and (2) inability or unwillingness to establish a safe home." In re L.A.B., 178 N.C. App. 295, 299, 631 S.E.2d 61, 64 (2006). Neither parent challenges the court's finding of the first element, but they do challenge the court's finding of the second element and argue that the court's findings of fact and the evidence do not support a conclusion that they lack the ability or willingness to provide a safe home.
On 18 August 2011, the trial court took judicial notice, without objection, of the disposition order entered in the previous termination of parental rights proceeding. The child in the earlier proceeding had been adjudicated as a neglected and dependent juvenile. That juvenile came to the attention of DSS when it received a report on 14 January 2008 alleging that the parents were engaging in domestic violence in the presence of the child, the father had substance abuse issues, and the family had been evicted from their home. Respondents entered into a case plan on 19 March 2008 in which they agreed that they would not expose the juvenile to domestic violence or to their use of drugs and/or alcohol.
Three days later, on 22 March 2008, respondents engaged in an incident of domestic violence in the presence of the child, during which respondent-father struck the two-year-old child in the face with sufficient force to cause bruising to the child's face. Respondent-mother did not report this incident to DSS or law enforcement or seek medical treatment for the child. Respondents subsequently engaged in another domestic violence incident in the presence of the juvenile on 8 May 2008 and, again, did not report the incident to DSS. Although respondent-mother had been living separate and apart from respondent-father as part of reunification efforts, which urged that she obtain employment and independent housing, she quit her job and resumed a relationship with respondent-father. Except for one visit the week after 16 February 2009, respondent-mother had no contact with the child or DSS for several months, during which time she lived with respondent-father in various temporary housing situations. At a review hearing on 1 December 2009, the court found that respondent-parents were living in a motel which was not appropriate for the child as it was known for drug transactions and the parents were disturbed in the early morning hours by persons seeking drugs or cigarettes. Respondents' parental rights as to that child were terminated on 3 January 2011.
In the adjudication order in the instant case, the trial court found that the "parents' lifestyle throughout the present case continued to be the same as it was during" the time their parental rights to the other child were terminated. Respondent-father challenges this finding as not being supported by competent evidence. Respondent-mother, however, concedes that the two cases share the common circumstances of unstable housing, unemployment and substance abuse, but argues the present case lacks incidents of domestic violence.
We do not deem their arguments persuasive in this review of whether the evidence supports their inability or unwillingness to establish a safe home. In fact, there are other findings of fact not challenged by respondents and other evidence in the record to support the court's finding that respondents continued to live in much the same manner as they did in the period leading up to the termination of their parental rights to the other child. The social worker who had been assigned the case testified that the behavior and lifestyle of the parents has "pretty much been consistent throughout the life of the case." She did not have any reason to believe that if the child, Luke, were returned to the parents anything would change, and she further believed it would be a repetition of what had already occurred based upon the history of the case and their behaviors.
This history and behavior is set forth in the trial court's unchallenged findings and evidence. Respondent-mother was arrested on 13 September 2013 and was observed by the arresting officer to be impaired by some substance. She admitted to the officer that she was "an addict" and "had a problem" with substance abuse. At the time of her arrest, respondent-mother was residing with a paternal aunt, after having briefly resided in a motel room in Loris, South Carolina. Respondent-mother underwent a drug test on 18 September 2013 and tested positive for opiates. While living in a room they rented in a private home in October 2014, respondents engaged in arguments, and on one occasion, respondent-mother struck and attempted to choke respondent-father. Respondent-parents left that home without notice to their landlord in late October or early November. Respondent-parents tested positive on multiple occasions for the presence of cocaine, opiates, benzodiazepines, oxycodone, oxymorphone, or marijuana from 14 November 2013 to 5 January 2015.
The trial court also took judicial notice of all prior dispositional, review, and permanency planning orders in this matter. At a review hearing on 2 September 2014, the presiding judge related for the record that respondent-father had communicated to a third party threats to physically harm the presiding judge and the assigned DSS social worker. Concerned that this threat may affect his ability to remain impartial, the presiding judge entered an order recusing himself from the case. The last permanency planning order prior to the termination hearing incorporated by reference the court reports of the DSS social worker and of the guardian ad litem. The social worker's report showed that one or both of the respondent-parents failed to submit to drug screens requested by DSS on 5 February, 9 March, 24 March, and 30 March 2015.
The social worker's report also showed that respondent-parents failed to appear for a visit with the child, Luke, on 22 January 2015, even though respondent-father had been notified of the scheduled visit the previous day. When the social worker visited the home of the parents later that day, respondent-father told the social worker that he "forgot that today was Thursday." Both parents missed another scheduled visit with Luke on 9 February 2015. Later that day, the social worker had a conversation with respondent-father in which he related that he thought respondent-mother had overdosed that morning as she was "out of her head pilled up." Respondent-father indicated that he did not know why they missed the visit the previous week.
The parents next missed a scheduled visit on 2 March 2015. When the parents failed to show for this visit, the social worker called their residence and a man named "Jerry" answered the telephone. Jerry reported that the family was still asleep. The social worker then visited the home later that day. A person at the residence stated that respondent-parents were still sleeping. The person went back inside the house and returned, stating he was unable to awaken them. A chart prepared by DSS, and incorporated by reference in the court's permanency planning order rendered 16 June 2015, showed that respondent-father missed all weekly visits with Luke from 10 November 2014 through 1 June 2015, and respondent-mother visited only four times during that time frame, having last visited the child on 26 January 2015.
During the home visit on 22 January 2015, respondent-father indicated to the social worker that he and respondent-mother would be sharing the residence with a roommate. On or about 6 April 2015, respondent-father was arrested and charged with misdemeanor assault with a deadly weapon arising out of an incident involving the roommate. The report of the guardian ad litem confirmed the arrest.
Between 15 July 2013 and the date of the termination of parental rights hearing on 13 July 2015, respondents resided at seven different locations, four of which were motels. Respondents relied upon the generosity of friends and acquaintances to obtain and retain any shelter. The social worker testified that respondent-mother reported they would ask one particular person for money to pay rent or buy groceries.
Respondents are not legally, physically, or mentally disabled. They were and are able to work, earn income, and pay support for Luke while he was in foster care but have willfully failed to do so. Although respondent-father did make support payments on 7 November 2014 and 12 January 2015, these payments were "purge payments" made in response to contempt proceedings. Respondent-mother has made zero support payments during the six months next preceding the filing of the termination petition. With the exception of a payment of $10.00 by respondent-mother for the purpose of purchasing a birthday cake for the child's first birthday, respondent-parents have not provided any cards, gifts, or contact of any kind with Luke for more than two years' worth of holidays and birthdays. Subsequent to the filing of the petition to terminate parental rights, respondents moved to the Free Ministries farm in South Carolina, which caused them to miss all available visits with the child in April 2015 and half of the visits in May 2015. Respondents also lost contact with DSS for seven weeks after they moved to South Carolina.
A safe home is defined as "[a] home in which the juvenile is not at substantial risk of physical or emotional abuse or neglect." N.C. Gen. Stat. § 7B-101(19) (2015). A parent neglects a child by failing to provide proper care, supervision, discipline, a safe environment, or by abandoning the child. Id. § 7B-101(15). "[I]f a parent withholds his presence, his love, his care, the opportunity to display filial affection, and willfully neglects to lend support and maintenance, such parent . . . abandons the child." Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962) (citation omitted). "Abandonment is not an ambulatory thing the legal effects of which a delinquent parent may dissipate at will by the expression of a desire for the return of the discarded child." Id. at 502, 126 S.E.2d at 609 (quoting In re Bair's Adoption, 393 Pa. 296, 307, 141 A.2d 873, 879 (1958)). A parent's prolonged inability to improve his or her situation, despite some efforts and good intentions in that direction, will support a finding of willfulness. In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93 (2004).
This Court held in L.A.B. that the court's findings of fact concerning the transient state of the parent's housing and the parent's failure to address personal hygiene issues, supervise the child during visitations, and complete parenting classes supported the court's conclusion that the parent lacked the ability or willingness to provide a safe home. 178 N.C. App. at 300-01, 631 S.E.2d at 65. In another case, this Court held that the chronic nature of the parents' mental health conditions, along with the father's severe mental and physical health problems, which required a full-time care provider, supported a conclusion that the parents lacked the ability to establish a safe home for the child. See In re V.L.B., 168 N.C. App. 679, 684-85, 608 S.E.2d 787, 791 (2005). In a third case, this Court held that findings of fact concerning the parent's history of being in domestic violence situations supported the trial court's conclusion that the parent lacked the ability or willingness to establish a safe home. See In re D.J.E.L., 208 N.C. App. 154, 156-58, 701 S.E.2d 1, 2-3 (2010).
Here, the court's findings of fact clearly establish that respondents are unable or unwilling to provide a safe home in which the child will be free from the risk of emotional or physical harm or neglect. Although physically able to work, neither parent is consistently gainfully employed earning income which could provide the child with food, shelter, clothing, and medical care. Respondents have voluntarily disappeared from Luke's life for months at a time and consequently failed to provide the personal contact, love, affection, and concern inherent in a parental relationship. As the court found in Finding of Fact No. 57, both parents have a history of substance abuse issues which could impair their ability to respond to "ordinary exigencies" that might arise in the ordinary course of caring for Luke. Respondents have also had a history of domestic violence, including incidents in which a child was harmed physically or placed at risk of emotional harm, with each other or with other persons residing with them. These issues of transient housing, substance abuse, and domestic violence have been chronic over the course of several years.
We hold the court properly concluded that respondents have previously had their parental rights involuntarily terminated with respect to another child and that respondents lack the ability or willingness to establish a safe home for Luke.
The adjudication and disposition orders terminating respondents' parental rights as to Luke are affirmed.
AFFIRMED.
Chief Judge MCGEE and Judge STROUD concur.
Report per Rule 30(e).