Opinion
No. COA12–239.
2012-07-3
In the Matters of L.L.W., D.C.A., L.S.W.
Paul W. Freeman, Jr., for Wilkes County Department of Social Services. Ivey, McClellan, Gatton & Talcott, L.L.P., by Charles (Chuck) M. Ivey, IV, for Guardian ad Litem.
Appeal by Respondents from order entered 6 December 2011 by Judge Jeanie R. Houston in Wilkes County District Court. Heard in the Court of Appeals 12 June 2012. Paul W. Freeman, Jr., for Wilkes County Department of Social Services. Ivey, McClellan, Gatton & Talcott, L.L.P., by Charles (Chuck) M. Ivey, IV, for Guardian ad Litem.
Assistant Appellate Defender J. Lee Gilliam for Respondent-mother.
Mary McCullers Reece for Respondent-father.
STEPHENS, Judge.
Respondent-mother and Respondent-father are the parents of L.L.W., D.C.A., and L.S.W. The Wilkes County Department of Social Services (“DSS”) became involved with the family in January 2010 when the youngest child, L.L.W, was born with methadone in his system. At that time, Respondent-mother tested positive for the presence of methamphetamines.
In March 2010, DSS instituted a program intended to help Respondents address their substance abuse issues. On 12 October 2010, after Respondents failed to make adequate progress in the program, DSS filed juvenile petitions seeking adjudications that the children were neglected. Thereafter, the trial court adjudicated the children neglected and awarded legal and physical custody of the children to DSS. In the adjudication order, the court allowed each Respondent to have twice-monthly supervised visitation with the children conditioned upon the Respondents' passing a random drug screen prior to any visit.
On 22 November 2010, Respondents entered into a family service case plan with DSS which required Respondents to, inter alia, maintain stable housing and employment, pay child support, complete parenting classes, participate in random drug screens requested by DSS, contact a social worker at least twice per month, and submit to a substance abuse assessment and follow any recommended counseling or treatment. After a 2 May 2011 permanency planning hearing, the trial court entered an order finding that neither parent had met any of the requirements in the family service case plan and had not made any progress in addressing the issues that caused the children to be adjudicated neglected. The court, therefore, approved a permanent plan of adoption.
On 6 July 2011, DSS filed petitions to terminate Respondents' parental rights on the grounds of (1) neglect, (2) failure to pay a reasonable portion of the cost of care for the juveniles, and (3) abandonment. Following a 10 November 2011 hearing, the trial court concluded that each of the three grounds for termination existed and that it was in the children's best interest that Respondents' parental rights be terminated. Thereafter, the trial court entered a 6 December 2011 order terminating Respondents' parental rights. Respondents appeal.
We note that Respondent-father was not present at the hearing because he was incarcerated beginning in early June 2011, but that Respondent-father's counsel was present at the hearing to represent Respondent-father.
As for Respondent-mother's appeal, counsel for Respondent-mother has filed a “no-merit” brief pursuant to N.C. R.App. P. 3.1(d). Counsel for Respondent-mother states in the brief that he conducted a “conscientious and thorough” review of the record on appeal and concluded that “the record contains no issue of merit on which to base an argument for relief and that the appeal would be frivolous.” Counsel requests this Court to review the record to determine whether he has overlooked any errors which would entitle Respondent-mother to a new trial or other relief. Counsel states that he has provided Respondent-mother with a copy of his brief, the trial transcript, and record on appeal and has attached to the brief a letter he wrote to Respondent-mother on 20 March 2012 in which he advised her that he could not find any error, that he filed a “no-merit” brief, and that she had the right to file her own written arguments directly with this Court on or before 19 April 2012. Counsel for Respondent-mother has also discussed in the brief the issues he considered and why he concluded Respondent-mother could not prevail upon those issues. We conclude that counsel has shown compliance with the requirements of Rule 3.1(d).
Respondent-mother has not filed her own written arguments. After carefully reviewing the record on appeal, we are unable to find any error to support meaningful relief on appeal. We affirm the termination of parental rights of Respondent-mother.
In Respondent-father's appeal, he argues that the trial court erred by concluding that grounds exist to support termination of his parental rights. We disagree.
This Court reviews an order finding the existence of grounds for termination of parental rights to determine whether the findings of fact are supported by clear, cogent, and convincing evidence, and whether the findings of fact support the court's conclusions of law. In re Shepard, 162 N.C.App. 215, 221–22, 591 S.E.2d 1, 6,disc. review denied sub nom., In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004). We are bound by a finding of fact if there is some evidence in the record to support the finding. In re Montgomery, 311 N.C. 101, 110–11, 316 S.E.2d 246, 252–53 (1984). Further, findings of fact not challenged on appeal are binding. In re M.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009). We review the trial court's conclusions of law de novo. In re S.N., 194 N.C.App. 142, 146, 669 S.E.2d 55, 59 (2008), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
Respondent-father first contends that the trial court erred by concluding that the children were neglected. Specifically, Respondent-father argues that the trial court's conclusion that prior neglect by Respondent-father will likely recur is erroneous because Respondent-father addressed the issues that brought the children into DSS custody by remaining sober or drug-free for six months, by regularly attending meetings of Alcoholics/Narcotics Anonymous, and by pursuing a certificate in masonry while incarcerated. We are unpersuaded.
A neglected juvenile is one who does not receive proper care, supervision, or discipline from his parent or guardian, or who has been abandoned. N.C. Gen.Stat. § 7B–101(15) (2011). “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). If the child is not in the parent's custody at the time of the termination hearing, then “[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) (citation omitted). The court “must assess whether there is a substantial risk of future abuse or neglect of a child based on the historical facts of the case.” In re McLean, 135 N.C.App. 387, 396, 521 S.E.2d 121, 127 (1999).
In this case, the trial court made the following relevant findings of fact:
12. Beginning in March, 2010, [DSS] involved [Respondents] in a Case Management Program which was intended to address issues of the [Respondents'] substance abuse.
13. Because [Respondents] failed to adequately remedy the problems caused by their substance abuse, [DSS] subsequently filed neglect Petitions and obtained the custody of the children as aforesaid. The children have been out of [Respondents'] home since at least June 2010. Prior to coming into the custody of [DSS], the children lived with various relatives.
14. After the children were placed into the custody of [DSS], Family [ ] Case Plans were developed for [Respondents]. These Plans were intended to help [Respondents] improve the problems associated with their substance abuse, strengthen the relationship of [Respondents] with the children, improve parenting skills, and establish some residential stability for the family.
15. Specifically, the Case Plans required [Respondents] to do the following:
A. Maintain suitable housing. [Respondents] have had at least three (3) different addresses since the children have been in the custody of [DSS]. None of these addresses have been for an independent residence, with [Respondents] living with relatives or friends throughout the time the children have been in care.
B. Maintain suitable employment. [Respondent-mother] is not employed. She is able to work. [Respondent-father] had been employed cutting wood until he entered the North Carolina Department of Correction as more particularly appears below.
C. Provide support for the children. Neither [Respondent] has provided any support for the children although they have been physically and financially able to do so during most of the time the children have been in the care of [DSS].
D. Complete parenting classes. Although [Respondents] began parenting classes on January 26, 2011, neither [ ] finished these classes.
E. Participate in the in-home aid program. Due to [Respondents'] lack of progress in completing the other items on the Case Plans, in-home aid services were not available.
F. Participate in random drug screens. [Respondents] have participated in only one (1) of twelve (12) requested drug screens. This was in December, 2010.
G. Maintain contact with the Social Worker at least twice monthly. Neither [Respondent] has done this.
H. Have a substance abuse assessment and follow up with any recommended counseling and treatment. Neither [Respondent] did this.
16. In short it is apparent that neither [Respondent] made much, if any, effort to remedy the conditions which caused the children to be declared neglected juveniles in November, 2010.
17. Since the children have been in the care and custody of [DSS], each [Respondent] has had only one visit with the children.... This is primarily due to [Respondents] failing to appear for random drug screens. [Respondents] could have visited the children a minimum of twice monthly, if they had attended and passed random screens. However, as more particularly appears above, [Respondents] made little effort to attend these screens or to have visits with the children.
18. [Respondents] have also not maintained regular contact with the Social Worker. [Respondent-mother's] last contact with the Social Worker was in March, 2011. [Respondent-father's] last contact with the Social Worker was March 2, 2011.
19. [Respondent-father] is currently incarcerated in the North Carolina Department of Correction. He is serving a sentence for possession and distribution of methamphetamine precursors. He began this sentence on June 3, 2011. He has an expected release date of July 22, 2012.
20. Prior to his incarceration, [Respondent-father] provided no financial support for the children at any time while the children were in care, although he was physically and financially able to pay something more than zero toward the cost of the children's care. His failure to do so was willful and without just cause or excuse.
....
22. Neither [Respondent] has provided any cards, letters, gifts, or other tokens of love and affection for the children at any time while the children have been in the care and custody of [DSS].
23. Since his incarceration, [Respondent-father] sent one (1) letter inquiring about the children. This letter was October 3, 2011.
....
25. For six (6) months or more preceding the filing of the Petitions in these matters, neither [Respondent] has shown interest in the children's well-being or welfare, [nor] has either [Respondent] made any meaningful attempt to maintain a relationship with the children, to visit with the children, or to be a presence in the lives of any of the children.
Of the foregoing findings, the only one disputed by Respondent-father is number 16, which states that “in short it is apparent that neither [Respondent] made much, if any, effort to remedy the conditions which caused the children to be declared neglected.” This finding by the trial court is simply a summarization of the previous eight findings regarding Respondent-father's failure to comply with the case plan, which, along with addressing Respondent-father's actual substance abuse, was designed to address those problems that surrounded that abuse, such as the lack of relationship between Respondent-father and his children, poor parenting ability, and the lack of residential stability. There is ample evidence supporting this summarization of the trial court's previous eight findings, which are unchallenged on appeal. However, Respondent-father contends that this finding is unsupported because (1) he had been drug-free for six months while in prison, and (2) he had taken a masonry class while in prison. While these steps are admirable, neither shows any effort to reach the goals of the case plan, i.e., provide support for his children, complete parenting classes, participate in in-home aid programs, pass drug tests, or maintain contact with social workers. Though there is some contradictory evidence to show that Respondent-father made a slight effort to remedy the conditions that caused the children to be declared neglected, because there is other evidence showing that Respondent-father did not make “much, if any, effort” to remedy those conditions, we are bound by the finding. See In re Montgomery, 311 N.C. at 110, 316 S.E.2d at 252–53. Accordingly, finding of fact number 16 is binding on this appeal.
The above-quoted findings, either unchallenged by Respondent-father or supported by the evidence, establish that Respondent-father has almost totally failed to comply with a case plan which was specifically designed to alleviate the conditions which resulted in the placement of the children in foster care and to facilitate reunification. The findings also establish that he has largely withheld his love, personal contact, and support from his children.
This Court has previously held that the failure to achieve similar objectives imposed by a trial court's order is an adequate basis for terminating parental rights on the ground of neglect. See In re Brim, 139 N.C.App. 733, 741–43, 535 S.E.2d 367, 371–73 (2000). We have also stated that a proper consideration in determining whether a child is neglected is whether the parent has failed “to provide the personal contact, love, and affection that inheres in the parental relationship.” In re Apa, 59 N.C.App. 322, 324, 296 S.E.2d 811, 813 (1982). Accordingly, we hold that the trial court's findings of fact support a conclusion that Respondent-father neglected the children both in the past and at the time of the termination hearing.
Respondent-father also argues that the trial court erred by finding and concluding that (1) Respondent-father willfully failed to pay a reasonable portion of the cost of the juveniles' care for six months preceding the petition, and (2) that he willfully abandoned his children for six months immediately preceding the filing of the petition. However, because we hold that the trial court properly found that Respondent-father's parental rights could be terminated on the ground that he neglected the children, and because only one ground is required to terminate parental rights, it is not necessary for us to consider Respondent-father's arguments related to the other grounds found by the court. See In re B.S.D.S., 163 N.C.App. 540, 546, 594 S.E.2d 89, 93–94 (2004) (“Having concluded that at least one ground for termination of parental rights existed, we need not address the additional ground of neglect found by the trial court.”).
Furthermore, because we hold that the trial court properly concluded that at least one ground for termination exists, and because Respondent-father does not challenge the trial court's determination that it is in the best interest of the children to terminate Respondent-father's parental rights, we affirm the trial court's order terminating Respondent-father's parental rights.
AFFIRMED. Chief Judge MARTIN and Judge HUNTER, ROBERT C., concur.
Report per Rule 30(e).