Opinion
No. COA15–504.
01-19-2016
In the Matter of: Q.C.R and L.Q.W.
Baddour, Parker, Hine & Hale, P.C., by E.B. Borden Parker and Helen S. Baddour, for petitioner-appellee Wayne County Department of Social Services. Mark Hayes for respondent-appellant mother. Troutman Sanders LLP, by Gavin B. Parsons, for guardian ad litem.
Baddour, Parker, Hine & Hale, P.C., by E.B. Borden Parker and Helen S. Baddour, for petitioner-appellee Wayne County Department of Social Services.
Mark Hayes for respondent-appellant mother.
Troutman Sanders LLP, by Gavin B. Parsons, for guardian ad litem.
Opinion
Appeal by respondent-mother from orders entered 9 May 2014 by Judge David B. Brantley and orders entered 16 February 2015, as amended on 2 March 2015, by Judge Timothy I. Finan in Wayne County District Court. Heard in the Court of Appeals 28 December 2015.
INMAN, Judge.
Respondent appeals from orders ceasing reunification efforts with and terminating her parental rights to her minor children, Q.C.R. (“Qamar”) and L.Q.W. (“Layla”). We dismiss her appeal from the orders ceasing reunification efforts and affirm the orders terminating her parental rights.
Pseudonyms are used throughout for ease of reading and to protect the identities of the juveniles.
The Wayne County Department of Social Services (“DSS”) initiated the underlying juvenile case involving Qamar on 28 September 2011, when it obtained non-secure custody of Qamar and filed a petition alleging she was a neglected and dependent juvenile based upon incidents of domestic violence between respondent and Q.R. (“Qadir”), respondent's unstable living conditions, concerns about respondent's mental health, and possible substance abuse by Qadir. Qadir is the father to both Qamar and Layla. DSS had initially become involved with the family in April 2011 due to domestic violence. DSS developed in-home services plans for both respondent and Qadir and arranged for Qamar to be placed with her maternal grandmother.
After a hearing on 20 October 2011, the trial court entered an order adjudicating Qamar to be a neglected juvenile. The court continued custody of Qamar with DSS and continued to authorize her placement with her maternal grandmother. The court granted respondent supervised visitation with Qamar and ordered her to: (1) complete domestic violence treatment and follow all recommendations; (2) complete a substance abuse assessment and follow all recommendations; (3) establish and maintain employment and housing; (4) obtain prenatal care; (5) attend parenting classes and demonstrate skills learned; and (6) complete a psychological evaluation and follow all recommendations.
Respondent gave birth to Layla in December 2011 and on 27 January 2012, DSS filed a petition alleging Layla was a neglected and dependent juvenile. DSS obtained non-secure custody of Layla that same day. After a hearing on 1 March 2012, the trial court entered an order adjudicating Layla to be a neglected juvenile and ordered respondent to comply with a case plan identical to that already established in the juvenile matter involving Qamar.
The trial court conducted numerous review hearings in the underlying matters and initially set the permanent plan for both Qamar and Layla as reunification with respondent or their father. However, in orders entered 9 May 2014, the trial court concluded that further reunification efforts would be futile and inconsistent with the children's health, safety, and need for a safe permanent home within a reasonable period of time. The court relieved DSS from having to make further efforts to reunify respondent or Qadir with the children, and set the permanent plan for the children as guardianship or adoption.
DSS filed petitions to terminate respondent's parental rights to Qamar and Layla on 23 July 2014, alleging grounds of neglect and failure to make reasonable progress toward correcting the conditions that led to the removal of the children from her care. See N.C. Gen.Stat. § 7B–1111(a)(1), (2) (2013). After a three-day hearing in December 2014, the trial court entered orders terminating respondent's parental rights to Qamar and Layla on 16 February 2015. On 23 February 2015, respondent filed written notice of appeal from the orders terminating her parental rights and from the 9 May 2014 orders ceasing reunification efforts.
Prior to the termination hearing, Qadir relinquished his parental rights to both Qamar and Layla.
The trial court on 2 March 2015 entered amended orders terminating respondent's parental rights to correct minor clerical errors and incorporate handwritten additions made on the original printed orders. The trial court had authority to enter the amended orders pursuant to Rule 60(a) of the North Carolina Rules of Civil Procedure. See N.C. Gen.Stat. § 1A–1, Rule 60(a) (2013) (providing that clerical mistakes may be corrected during the pendency of an appeal prior to the docketing of the appeal in the appellate division). Because she did not file written notice of appeal from the amended orders, respondent has filed a petition for writ of certiorari with this Court to bring the amended orders before us for review. In the interests of justice and judicial economy, we allow respondent's petition for writ of certiorari to review the amended orders terminating her parental rights.
We first address respondent's appeal from the 9 May 2014 orders ceasing reunification efforts. Respondent's right to appeal orders entered in the underlying juvenile abuse, neglect, and dependency proceeding is specifically limited to those orders set forth in section 7B–1001(a) of North Carolina's Juvenile Code. See N.C. Gen.Stat. § 7B–1001(a) (2013). Respondent has a right to appeal from any order ceasing reunification efforts. N.C. Gen.Stat. § 7B–1001(a)(5) (2013). However, she must have filed written notice of her intent to appeal from the orders ceasing reunification efforts within thirty days of the entry and service of the orders. See N.C. Gen. §§ 7B–507(c), –1001(a)(5), (b) (2013). “If parents fail to comply with any step of the preservation process, they have waived appellate review [of the order].” In re L.M.T., 367 N.C. 165, 182–83, 752 S.E.2d 453, 464 (2013).
The record before this Court does not show that respondent filed a written notice of her intent to appeal the court's orders ceasing reunification efforts, and she has therefore waived review of the orders. Respondent has not filed a petition for writ of certiorari with this Court seeking discretionary review of the orders, and we thus dismiss her appeal as to the 9 May 2014 orders ceasing reunification efforts with Qamar and Layla.
Respondent also argues the trial court erred in concluding the ground of neglect existed to terminate her parental rights, because DSS failed to establish that her “antagonism” against the agency presented any risk of harm to her children. The trial court, however, did not terminate respondent's parental rights because she antagonized DSS or had any antagonism against DSS, but rather on the ground of neglect. We conclude this ground is fully supported by the court's findings of fact, which in turn are supported by evidence presented at the termination hearing.
This Court reviews a trial court's findings and conclusions regarding a ground for termination of parental rights to determine whether clear and convincing evidence exists to support the findings of fact, and whether the findings of fact support the conclusions of law. In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 841 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). A trial court may terminate a mother's parental rights to her child when she has neglected the juvenile. N.C. Gen.Stat. § 7B–1111(a)(1) (2013). A neglected juvenile is defined in part as “[a] juvenile who does not receive proper care, supervision, or discipline ... or who lives in an environment injurious to the juvenile's welfare[.]” N.C. Gen.Stat. § 7B–101(15) (2013). Generally, “[i]n deciding whether a child is neglected for purposes of terminating parental rights, the dispositive question is the fitness of the parent to care for the child at the time of the termination proceeding.” In re L.O.K., 174 N.C.App. 426, 435, 621 S.E.2d 236, 242 (2005) (internal quotation marks omitted). However, “[w]here, as here, a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect.” In re Shermer, 156 N.C.App. 281, 286, 576 S.E.2d 403, 407 (2003). A trial court may terminate parental rights based upon prior neglect of the juvenile if “the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to her parents.” In re Reyes, 136 N .C.App. 812, 815, 526 S.E.2d 499, 501 (2000). “Relevant to the determination of probability of repetition of neglect is whether the parent has made any meaningful progress in eliminating the conditions that led to the removal of [the] children.” In re J.H .K., 215 N.C.App. 364, 369, 715 S.E.2d 563, 567 (2011) (internal quotation marks omitted).
Here, the trial court had previously adjudicated Qamar and Layla to be neglected juveniles by orders entered 14 December 2011 and 28 March 2012. In both of these orders, the trial court established case plans for respondent designed to correct the conditions that led to the removal of Qamar and Layla from her care. These plans required respondent, in part, to complete domestic violence treatment and follow all recommendations, complete a substance abuse assessment and follow all recommendations, and complete a psychological evaluation and participate in mental health counseling. Throughout the history of the underlying case, respondent made no substantial progress on these aspects of her case plan, and the trial court found that at the time of the termination hearing, respondent continued to have problems controlling her anger and violence and continued to use illegal narcotics. Evidence admitted at the hearing established that respondent never obtained a domestic violence assessment, that she engaged in violent acts throughout the course of the underlying juvenile cases, that she was involuntarily committed in April 2014 because she was homicidal, and that she continued to use illegal drugs as a means of dealing with her problems. Respondent's failure to address her substance abuse issues was reflected in her positive drug tests for marijuana on 1 and 3 December 2014, the first and second days of the termination hearing.
As the juvenile case progressed and respondent's tendency to use violence manifested itself outside of her domestic household, the trial court also required respondent to complete anger management treatment.
We conclude that the trial court's findings of fact regarding respondent's failure to address the conditions that led to the removal of her children are further supported by respondent's own testimony at the hearing, testimony from social workers who worked with respondent mother over the course of her case, testimony from police officers who had prior dealings with respondent, and prior orders entered in the juvenile case of which the court took judicial notice without objection from any party. Accordingly, we hold the trial court's conclusion that the ground of neglect exists to terminate respondent's parental rights to Qamar and Layla is fully supported by its findings of past neglect and that there is a probability of a repetition of the neglect if the juveniles were returned to respondent's care, given her inability to comply with her case plan and address her domestic violence and anger management issues. Respondent does not challenge the trial court's conclusion that termination of her parental rights is in the best interests of Qamar and Layla, and we thus affirm the court's orders terminating respondent's parental rights.
DISMISSED IN PART; AFFIRMED IN PART.
Judges McCULLOUGH and ZACHARY, concur.
Report per Rule 30(e).