Opinion
No. COA14–1273.
05-05-2015
In the matter of M.S.
Matthew W. Jackson for petitioner-appellee Beaufort County Department of Social Services. Sydney Batch for respondent-appellant father. Kilpatrick Townsend & Stockton LLP, by John M. Moye, for guardian ad litem.
Matthew W. Jackson for petitioner-appellee Beaufort County Department of Social Services.
Sydney Batch for respondent-appellant father.
Kilpatrick Townsend & Stockton LLP, by John M. Moye, for guardian ad litem.
INMAN, Judge.
Respondent, the father of the juvenile M.S., appeals from an order terminating his parental rights. After careful review, we affirm.
Background
This matter is before this Court for a second time. The full facts of this case are set forth in the unpublished opinion In re M.S.,No. COA14–138, 2014 WL 2781788 (June 17, 2014) (unpublished).
On 9 December 2011, Beaufort County Department of Social Services (“BCDSS”) filed a petition alleging that M.S., then a newborn less than one month old, was a neglected juvenile. BCDSS alleged that the mother, who is not a party to this appeal, was incapable of properly caring for M.S. BCDSS further alleged that respondent had a long history of domestic violence, which included incidents involving his children. As a result, respondent was subject to a Domestic Violence Protective Order regarding his six-year-old son; had consented to an adjudication of neglect regarding his five-month-old daughter; and had criminal misdemeanor convictions for habitual misdemeanor assault. Accordingly, BCDSS alleged that M .S. lived in an environment injurious to her welfare.
On 10 October 2012, the trial court adjudicated M.S. a neglected juvenile. On 16 September 2013, the trial court ordered reunification efforts to cease and changed the child's permanent plan to adoption. On 7 November 2013, the trial court terminated respondent's parental rights. Respondent appealed. This Court vacated and remanded the termination order on the basis that the trial court made insufficient findings of fact to support its conclusion that grounds existed to terminate respondent's parental rights. In re M.S.,at *5.
This matter was heard on remand on 11 July 2014. On 14 August 2014, the trial court entered an order terminating respondent's parental rights after concluding that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(1), (2) and (6) (2013). Respondent appeals.
I. Grounds to Terminate Parental Rights
Respondent argues that the trial court erred by concluding that grounds existed to terminate his parental rights. We disagree.
N.C. Gen.Stat. § 7B–1111 sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support termination. In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 426 (2003). “The standard of appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law.” In re D.J.D., 171 N.C.App. 230, 238, 615 S.E.2d 26, 32 (2005).
In the instant case, the trial court concluded that grounds existed to terminate respondent's parental rights based on neglect under N.C. Gen.Stat. § 7B–1111(a)(1). “Neglected juvenile” is defined in N.C. Gen.Stat. § 7B–101(15) (2013) as:
A juvenile 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.
“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). Where, as here, a child has been removed from the parent's custody before the termination hearing and the petitioner presents evidence of prior neglect, 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). Additionally, the determination of whether a child is neglected “must of necessity be predictive in nature, as the trial 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).
Here, the trial court found as fact:
7. [M.S.] is the fifth of six children born to Father. None of Respondent–Father's other children are in his custody due to his long-standing history of domestic violence. Father's first child was placed in her Mother's legal custody after Father was convicted of assaulting the child's mother [.] Thereafter, Father had two children with [T.T.] Father was convicted of assaulting [T.T.], assaulting her seven-year-old son, and convicted twice for violating the domestic violence protective orders. Father stipulated to an adjudication of neglect for shaking his second child, a five month old infant daughter. Father chose not to work towards reunification and guardianship was awarded to the child's maternal grandmother. Father slapped his third child, a six—year-old son, in the face and gave him a bloody nose because he spit out some of his cough medicine. Father's fourth child was relinquished to maternal family members for adoption and Father's sixth child was adjudicated neglected on this date.
....
10. Father has a history of assaulting domestic partners and children left in his care.... To this date, father refuses to accept any personal responsibility for these actions.
11. Before [M.S.] had even been discharged from the hospital at birth, BCDSS initiated a CPS investigation based upon Father's long-standing history of domestic violence towards women and children, [and] his continuing emotional and physical abuse of Mother[.]
....
13. On January 3, 2012, [respondent] signed [a] case plan[ ] with BCDSS agreeing to complete services. The priority in Father's case plan was to obtain a psychological evaluation. [Respondent was] also required to attend therapy, parenting classes, and seek employment.
14. Eight months later on September 5, 2012, [M.S.] was adjudicated neglected. At the disposition hearing in September of 2012, Father had not obtained a psychological evaluation and had failed to attend therapy or parenting classes.... This Court ordered Father to complete a psychological evaluation within the next ninety days[.]
....
17. After BCDSS filed a motion to terminate [respondent's] parental rights, Father met with BCDSS and stated he didn't “regret anything” about his assault of other women and that certain previous incidents of domestic assault (five of which resulted in convictions) were not his fault.
18. On July 3, 2013, Mother told BCDSS that she was no longer living with Father because he had assaulted her and threatened to kill her, kill [M.S.] and kill their unborn child. He pushed her, cursed at her, and pulled a knife on her telling her he was going to kick her in the stomach. Mother thereafter, dropped the domestic violence protection order and criminal assault charges against Father and claimed it was all her fault because she wrecked the van and she couldn't take care of the child she was carrying on her own. This Court finds that Mother was, in fact, a victim of domestic violence at the hands of Father and that Mother has chosen to be dependent on Father.
....
21. Father has worked under a case plan since January of 2012. Father was ordered to obtain a psychological evaluation and has failed to do so. Father completed two separate parenting courses but his parenting skills have not improved. Father completed anger management therapy but has made no progress in confronting or eliminating his problems with domestic violence. Father's most recent acts of domestic violence against Mother were in July of 2013 after Father had completed Anger Management Therapy and after the TPR motion had been filed. This Court finds that Father's attitude has not changed over time and he remains willing to use assault to get his way.
22. As set out in the above findings of fact, despite [respondent's] partial participation in [his] case plan[ ], there has been little change in [his] relationship with [the Mother], no change in Father's propensity towards domestic violence, [and] no improvement in parenting skills or parental judgment[.]
23. There is a high likelihood of repeated neglect if [M.S.] were returned to the home of her parents for the reason set out above. [The findings of fact] make it unlikely that [respondent] could provide a safe environment and proper care, supervision and discipline of the juvenile in the future. There is a probability of repetition of neglect if the juvenile was returned home to her parents because the child was previously neglected and the parents have willfully chosen not to eliminate the circumstances which created the juvenile's original neglect.
Respondent challenges several of the trial court's findings, arguing that they are not supported by sufficient evidence. We disagree. The findings are supported by the record, and most notably, by the testimony of Abby Williams, a BCDSS investigator. Ms. Williams testified that respondent never obtained a psychological evaluation despite it being a part of his case plan and having been ordered to do so by the trial court. Ms. Williams additionally testified that respondent completed anger management training, but failed to take responsibility for most of his past incidents of domestic violence, tending to blame others. Ms. Williams testified that she believed that his participation in anger management did not reduce the likelihood of future episodes of violence by respondent. Ms. Williams also testified that M.S.'s mother told her that respondent had assaulted her and threatened to kill her, but that she did not prosecute a Domestic Violence Protective Order and criminal charges against respondent because she had wrecked his van and “it was her fault,” and because “she wasn't going to have anywhere to go.”
Respondent disputes much of the evidence, particularly whether there was continuing domestic violence. However, it is the trial judge's duty to “weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom.” In re Whisnant, 71 N.C.App. 439, 441, 322 S.E.2d 434, 435 (1984). Consequently, we conclude sufficient evidence supports the trial court's findings of fact.
Based on the historical facts of this case, respondent's lengthy history of domestic violence, the prior adjudication of neglect, the court's findings regarding domestic violence continuing even after TPR proceedings began, and respondent's complete failure to undergo a psychological evaluation, we conclude the trial court did not err when it determined that there was a high likelihood of repetition of neglect should M.S. be returned to respondent's care. Therefore, we conclude that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) to terminate respondent's parental rights based on neglect.
Respondent additionally argues that the trial court erred by concluding that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(2) (willfully leaving the juvenile in foster care or placement outside the home for more than 12 months) and 7B–1111(a)(6) (parental incapability of providing proper care to the juvenile) to terminate his parental rights. However, because we conclude that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) to support the trial court's order, we need not address the remaining grounds found by the trial court to support termination. See In re Taylor,97 N.C.App. at 64, 387 S.E.2d at 233–34.
Conclusion
For the foregoing reasons, we affirm the trial court's order terminating respondent's parental rights.
AFFIRMED.
Judges ELMORE and TYSON concur.
Report per Rule 30(e).
Opinion
Appeal by respondent from order entered 14 August 2014 by Judge Regina R. Parker in Beaufort County District Court. Heard in the Court of Appeals 20 April 2015.