Opinion
No. COA11–1407.
2012-06-5
In the Matter of N.R.R.W.
Lucy R. McCarl, for petitioner-appellee Caldwell County Department of Social Services. Mercedes O. Chut, for respondent-appellant mother.
Appeal by respondent from orders entered 24 August 2011 by Judge Robert M. Brady in Caldwell County District Court. Heard in the Court of Appeals 2 May 2012. Lucy R. McCarl, for petitioner-appellee Caldwell County Department of Social Services. Mercedes O. Chut, for respondent-appellant mother.
Anne M. Middleton, for Guardian ad Litem.
CALABRIA, Judge.
Respondent-mother (“respondent”) appeals from orders terminating her parental rights. The father was present for the hearing but is not a party to the appeal. We affirm.
I. Background
Respondent has four children. N.R.R.W. (“Nicole”), the subject of the present appeal, is respondent's fourth child. Prior to Nicole's birth, respondent had a “long and extensive child protective services history” with the Department of Social Services (“DSS”). DSS provided respondent and Nicole's three older siblings services due to an injurious environment, substance abuse, unstable living arrangements, unstable employment, domestic violence, improper supervision, and improper care. Respondent and Nicole's father (“father”) continued to have issues with substance abuse and domestic violence and were charged with misdemeanor child abuse for leaving the children home alone unsupervised.
We use pseudonyms to protect the identity of the children and for ease of reading.
The trial court authorized DSS to assume non-secure custody of Nicole's older siblings and they were adjudicated dependent on 28 October 2009. Respondent was ordered to comply with a case plan which included random drug screens, substance abuse assessments, domestic violence assessment and psychological counseling. However, respondent refused numerous drug screens and tested positive for benzodiazepines, oxycodone, and oxymorphone. Additionally, respondent failed to receive counseling, substance abuse treatment, and domestic violence treatment.
Nicole was born on 13 December 2009. On 14 December 2009, Caldwell County DSS filed a petition alleging that Nicole was a neglected and dependent juvenile. DSS recounted its history of providing services to respondent's family and alleged that respondent tested positive for benzodiazepines in the emergency room at admission prior to Nicole's birth. Additionally, DSS noted that respondent received minimal prenatal care during her pregnancy. The trial court authorized DSS to assume non-secure custody of the juvenile.
On 30 July 2010, Nicole was adjudicated a neglected and dependent juvenile. At disposition, the court noted its prior orders regarding Nicole's older siblings and even though respondent had taken “marginal steps, by going to counseling and doing a few things[,]” the court concluded that respondent had failed to make progress. Accordingly, the court relieved DSS of reunification efforts. On 29 September 2010, the trial court entered a permanency planning review order setting the permanent plan for the juvenile as adoption.
On 22 October 2010, DSS filed a motion to terminate respondent's parental rights to Nicole. DSS alleged that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) and (6) to terminate respondent's parental rights. On 24 August 2011, the court entered orders terminating respondent's parental rights after concluding that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) and (6). The trial court also found that it was in the best interests of the juvenile to terminate parental rights. Respondent appeals.
II. Guardian Ad Litem
Respondent first argues that the trial court erred by failing to appoint a guardian ad litem for her pursuant to N.C. Gen.Stat. § 7B–1101.1(c) (2011). Respondent's argument is misplaced. Despite respondent's contentions to the contrary, it appears from the record that Linda Hebel was appointed as respondent's guardian ad litem and appeared on her behalf at hearings throughout the case, including the hearings on the petition to terminate respondent's parental rights. Consequently, we conclude that respondent's argument is wholly without merit.
III. Ceasing Reunification Efforts
Respondent alleges that the trial court erred by ceasing reunification efforts in its dispositional order entered on 30 July 2010. However, respondent failed to properly preserve the issue for appellate review. N.C. Gen.Stat. § 7B–507(c) provides that:
[a]t any hearing at which the court finds and orders that reasonable efforts to reunify a family shall cease, the affected parent ... may give notice to preserve the parent['s] ... right to appeal the finding and order in accordance with G.S. 7B1001 (a)(5). Notice may be given in open court or in writing within 10 days of the hearing at which the court orders the efforts to reunify the family to cease.
N.C. Gen.Stat. § 7B–507(c) (2009). Respondent failed to give notice in open court or in writing within 10 days of the hearing at which the trial court ordered the cessation of reasonable efforts. Therefore, respondent's argument is not properly before the Court, and we decline to review this argument.
N.C. Gen.Stat. § 507(c) was amended by Session Laws 2011–295, s.3, effective October 1, 2011, and applicable to actions filed or pending on or after that date.
IV. Termination of Parental Rights
Respondent next argues that several of the trial court's findings of fact are not supported by competent evidence in the record, and that the trial court erred by concluding that grounds existed to terminate her 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 D.J .D., 171 N.C.App. 230, 238, 615 S.E.2d 26, 32 (2005). “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.” Id . (citations omitted).
A court may terminate parental rights if it finds that “[t]he parent has ... neglected the juvenile ... within the meaning of” N.C. Gen.Stat. § 7B–101(15). N.C. Gen.Stat. § 7B–1111(a)(1) (2011). A neglected juvenile is:
[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.
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) (citation omitted). Where, as here, a child has been removed from the parents' 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).
In the instant case, Nicole's removal from respondent's custody and the subsequent adjudication of neglect was primarily based on respondent's extensive history of child protective services regarding Nicole's three older siblings. Additionally, there were issues relating to respondent's mental health, substance abuse, domestic violence, and lack of stable employment and housing.
In its order terminating respondent's parental rights, the trial court found as fact:
13. The results of the evaluation [conducted by Dawn Behrend, M.A., LPA, qualified as a psychological expert, in September 2009] of the Respondent mother determined that she had a Verbal IQ of 76; a Performance IQ of 85 and a Full Scale IQ of 84.... The responses of [respondent] to the PAI indicated a certain defensiveness about personal shortcomings as well as exaggeration of certain problems. These tendencies will likely lead her to minimize, or perhaps even be unaware of, problems or other areas where functioning might be less than optimal. The Court concurs in this assessment of [respondent] in that such tendencies have been observed by the Court. [Respondent] showed tendencies to be suspicious; have a pre-occupation with physical functioning and to have feelings of helplessness. She is quick to feel that she is being treated inequitably. The Court has also observed these tendencies in [respondent]. The testing utilized in the evaluation showed that [respondent] had low motivation for treatment. She is noted to be satisfied with herself as she is, that she is not experiencing marked distress, and that, as a result, she sees little need for changes in her behavior. She has demonstrated that to the Court throughout the pendency of this matter.... The Court has seen and finds that [respondent] has difficulties making parenting decisions which would be in the best interests of her child[.]
14. [T]he Axis II diagnosis of [respondent] of Personality Disorder with features of Dependent Personality Disorder is very important. It also requires long-term, intensive therapy. The evaluation recommended that [respondent] participate in intensive individual therapy; and that she have a psychiatric evaluation in order to consider medications that might be suitable for her issues. Ms. Behrend concluded that [respondent] clearly lacked the skills necessary to function independently as an adult, much less a parent, at the time of the evaluation. The Court concurs in that assessment of the level of functioning of [respondent] both then and currently.
15. Parenting classes, and other services could have been helpful for [respondent] but her own abuse is a barrier to her implementing any skills taught to her in such classes. Her failure to access individual therapy to address such abuse, and her failure to have a psychiatric evaluation, impacts her ability to parent this child up to the present day.
...
17. [Respondent] engaged in some counseling during 2010 but discontinued such therapy before completing any goals that might have been established. She was also unclear about why she should attend therapy, what benefit she had derived from therapy or what issues she needed to work on in therapy.... [Respondent] began some counseling at REAP in February, 2011, long after the filing of the Motion herein and as the hearings on such Motion were beginning.... The Court is unable to determine what skills, or expertise this counselor may offer to [respondent], or whether this counselor has any awareness of the serious mental health issues identified for [respondent].
...
19. The Court has observed [respondent] during the proceeding in this matter. The Court has also observed [her] demeanor during [her] testimony and the testimony of the other witnesses in this matter. [Respondent] demonstrate[s], as of the hearings herein and up to the conclusion of this matter, that [she] lack[s] insight or comprehension as to how [her] behaviors, [her] choices and [her] psychological issues have resulted in the loss of custody of the minor child. This lack of insight or comprehension does not bode well for [her] ability, in the future, to appropriately parent this minor child.... [She has] not done so up until now.
20....[I]n July, 2010, the Court found that [respondent has] consistently and continuously seemed somewhat oblivious as to why [she was] in Court, and why [her] children were removed, evan [sic] after what has been read, [respondent is] either mentally not able to understand, or [she] choose[s] to ignore it. That was true then and remains true as of the conclusion of the hearings on the Motion herein. There have been no signs of progress by the [respondent].
Finding of fact 24, which is not challenged by respondent on appeal, establishes that she continued to lack stable employment or housing at the time of the termination hearing. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (unchallenged finding are deemed supported by competent evidence and are binding on appeal); see also In re S.N.H., 177 N.C.App. 82, 83, 627 S.E .2d 510, 512 (2006).
Respondent challenges findings of fact 8, 14–16, 19–21, 28, 30, 31 and 32 “to the extent that they purport to find conditions in existence at the time of trial.” Respondent claims that none of the DSS employees observed her activities or living conditions or visited her current residence. Respondent also asserts that she had not been administered a drug test since the summer of 2010 and current evidence regarding her mental health was non-existent. In addition, according to the record, she had completed counseling sessions at Appalachian Counseling and was undergoing counseling in Raleigh. We conclude, however, that the trial court's findings were supported by competent evidence.
The reason DSS did not visit respondent's current residence or observe her current activities was because DSS was relieved of further responsibilities regarding reunification efforts. Furthermore, respondent testified that she had moved approximately six different times since October 2009. As of the date of the first hearing, respondent had only been living in her current housing for a few days.
Although respondent had not been administered a drug test since June 2010, a social worker testified that respondent had failed to comply with the requirement that she attend Narcotics Anonymous following her attendance at a substance abuse program. Respondent confirmed that she had not completed 20 hours of outpatient substance abuse treatment since Nicole was born. Thus, the trial court could determine that respondent had not addressed her substance abuse issues. Additionally, the social worker testified that while respondent did attend therapy at Appalachian Counseling, she did not complete counseling.
Although respondent was receiving counseling at the time of the hearing, the trial court found that it could not determine whether the counseling provided would satisfactorily address respondent's issues.
Furthermore, while her psychological evaluation dated back to 2009, and was two years old at the time of the hearing, respondent admitted that she never had the recommended psychiatric evaluation to determine whether her depression could be managed. The trial court's uncontroverted findings concerning the psychological evaluation demonstrated that respondent had long term issues. The trial court then determined, from its observations of the respondent at the hearings, that her psychological issues continued unabated. See In re Whisnant, 71 N.C.App. 439, 441, 322 S.E.2d 434, 435 (1984) (citation omitted) (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.”).
Defendant relies on In re Young, where the Court found that even though the respondent mother fed her child spoiled milk and maintained unsanitary living conditions one year prior to trial, that information was not sufficient to establish neglect. 346 N.C. 244, 250, 485 S.E.2d 612, 616 (1997). However, that case is distinguishable because a family therapist employed by the court conducted a home study prior to the termination proceedings and found that the respondent's home was “neat and clean and that respondent had arranged a bedroom and had purchased carpet on which [the child] could play.” Id. at 249, 485 S.E.2d at 615. Furthermore, the therapist testified that the mother had been diagnosed with breast cancer and that her “breast cancer had changed her attitude with respect to her willingness to become a better parent.” Id.
In the instant case, respondent's reliance on In re Young is misplaced. Respondent moved around frequently, had only lived in her current residence a short time, failed to have a bedroom for the child and also failed to obtain gainful employment. Additionally, the trial court found that she had not resolved her issues regarding substance abuse, psychological concerns or domestic violence at the time of the hearing, which continued to be a substantial risk of harm to Nicole. In contrast to In re Young, the trial court was not presented evidence of any changed conditions to negate the probability of a repetition of neglect.
Based on its findings, the trial court made an ultimate finding that:
[Respondent] has neglected the minor child and continues to neglect the minor child as of each of the hearings in this matter. Such neglect is a result of her failure to obtain substance abuse treatment; her instability in housing; her lack of employment; her failure to comply with the orders of the Court; her issues which have caused her to lose the custody of three other children; and her untreated mental health issues. Her failure to address these issues has a direct impact on the minor child. The minor child has a need for a safe, stable home free of domestic violence and abuse of illegal substances. The [Respondent] has been unable to address these issues and offer such a home to the minor child. There is a high likelihood of repetition of such neglect by her failure to meaningfully address her issues during the pendency of this matter for almost two years.
The testimony presented at the hearing, including respondent's testimony, supported the trial court's finding of fact and conclusions of law. We conclude that the evidence and findings of fact, coupled with the juvenile's prior adjudication of neglect, support the court's finding that there would likely be a repetition of neglect should the juvenile be returned to respondent's care. Accordingly, we hold that the trial court did not err by concluding that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) and it would be in the best interests of the juvenile to terminate parental rights.
Respondent additionally argues that the trial court erred by concluding that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(6) to terminate her 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 ground found by the trial court to support termination. See D.J.D., 171 N.C.App. at 238, 615 S.E.2d at 32. Accordingly, we affirm.
Affirmed. Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).