Opinion
No. COA11–1262.
2012-04-3
In the Matter of R.F., JR., a Minor Child.
Lauren Vaughan, for petitioner-appellee. Harrington, Gilliland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for respondent-appellant.
Appeal by respondent from orders entered 20 July 2011 by Judge Edward L. Hedrick, IV, in Iredell County District Court. Heard in the Court of Appeals 20 February 2012. Lauren Vaughan, for petitioner-appellee. Harrington, Gilliland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for respondent-appellant.
North Carolina Administrative Office of the Courts, by Pamela Newell, for guardian ad litem.
GEER, Judge.
Respondent mother appeals from orders terminating her parental rights to her son, R.F., Jr. (“Ryan”). On appeal, respondent argues primarily that the trial court erred in concluding that grounds existed to terminate her parental rights based on neglect. Respondent does not specifically argue that the trial court's findings are unsupported by the evidence, but rather contends that those findings are inadequate to establish a probability of a repetition of neglect if Ryan were returned to respondent's custody. We disagree and, therefore, affirm.
The pseudonym “Ryan” is used throughout this opinion to protect the minor's privacy and for ease of reading.
Facts
Ryan was born in May 2008. A few months after Ryan's birth, respondent and Ryan began living with respondent's godmother. Respondent gave birth to a daughter in July 2009. That same month, respondent and her daughter's father engaged in acts of domestic violence, which led to respondent's arrest.
Ryan's father is not a party to this appeal. The petition to terminate his parental rights was dismissed without prejudice for lack of personal jurisdiction.
The Iredell Department of Social Services (“DSS”) and respondent put in place a safety plan, which provided that Ryan would remain in the godmother's home. After respondent was released from jail on bond, she entered into a new safety plan on 14 August 2009 in which she agreed to allow Ryan and his sister to remain in her godmother's home. Subsequently, respondent removed Ryan and his sister from their placement and informed DSS that the agency would not be able to find them. Respondent, however, eventually returned the children to her godmother's home.
On 31 August 2009, DSS filed a petition alleging that Ryan was a neglected juvenile. According to the petition, respondent had engaged in acts of domestic violence in the presence of her children; had failed to comply with the safety plan; had been diagnosed with bipolar disorder, PTSD, and hypomania; and had failed to comply with mental health services. After the petition was filed, respondent violated her safety plan again by removing Ryan from daycare and refusing DSS access to Ryan.
Although DSS obtained non-secure custody of Ryan on 7 October 2009, the non-secure order was dissolved a week later pursuant to a consent agreement. The agreement provided that Ryan and his sister would continue to reside with respondent's godmother, that no parent would remove the children from the godmother's home or daycare, and that respondent would follow through with mental health treatment and recommendations.
After holding an adjudication and disposition hearing in October 2009, the trial court adjudicated Ryan a neglected juvenile based, in part, upon respondent's consent to the allegations set forth in the petition. The trial court nonetheless placed Ryan with respondent under certain conditions. The trial court ordered respondent to reside in her godmother's home or in a home specifically approved by DSS; to follow through with all mental health treatment and recommendations; to participate in therapy, including domestic violence treatment and anger management; and to seek appropriate assisted or independent housing.
On 3 November 2009, Ryan was removed from placement with respondent and placed in foster care. On 5 February 2010, respondent mother's parental rights with respect to two other minor children were involuntarily terminated.
Respondent moved into My Sister's House, a shelter where respondent regularly attended therapy and where she was allowed to have overnight visitation with Ryan. On 6 April 2010, however, respondent was required to leave the shelter because she had received too many write-ups for rules violations. Respondent's leaving the shelter resulted in her having less contact with Ryan and made her attendance at therapy more difficult and, consequently, decreased her compliance with therapy.
On 22 July 2010, respondent was incarcerated for violating the terms of her probation. Prior to her incarceration, respondent mother had received disability payments and had earned income performing odd jobs. Although respondent did bring clothing, food, and clothes for her children during visits, she did not pay any amount towards the cost of Ryan's care. Respondent told DSS that she would not work to pay DSS to help support her children.
The trial court conducted a permanency planning hearing on 21 September 2010 and, in an order filed 3 November 2010, the trial court ceased reunification efforts and ordered that the permanent plan for Ryan be adoption. On 13 December 2010, DSS filed a petition to terminate respondent's parental rights under N.C. Gen.Stat. § 7B–1111(a)(1) (2011) (neglect); N.C. Gen.Stat. § 7B–1111(a)(2) (failure to make reasonable progress to correct conditions leading to child's removal); N.C. Gen.Stat. § 7B–1111(a)(3) (failure to pay reasonable portion of cost of child's care); N.C. Gen.Stat. § 7B–1111(a)(6) (incapability of providing proper care and supervision); and N.C. Gen.Stat. § 7B–1111(a)(9) (parental rights to other children terminated involuntarily and parent lacks ability and willingness to establish safe home).
On 20 July 2011, the trial court entered an order determining that grounds existed to terminate respondent's parental rights based on neglect under N.C. Gen.Stat. § 7B–1111(a)(1). The court found that respondent had previously neglected Ryan and that “there is a likelihood of neglect if [Ryan] were returned home.” The court, however, concluded that DSS had failed to establish the other grounds set out in its petition. In a separate dispositional order also filed 20 July 2011, the trial court concluded that it was in the best interests of Ryan to terminate respondent's parental rights. Respondent timely appealed to this Court.
Discussion
Termination of parental rights proceedings involve a two-stage process. In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001). At the adjudicatory stage, “the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen.Stat. § 7B–1111 exists.” In re Anderson, 151 N.C.App. 94, 97, 564 S.E.2d 599, 602 (2002).
“If the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child.” Id. at 98, 564 S.E.2d at 602. The trial court's decision to terminate parental rights is reviewed under an abuse of discretion standard. In re Nesbitt, 147 N.C.App. 349, 352, 555 S.E.2d 659, 662 (2001). “ ‘An abuse of discretion occurs when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision.’ “ In re Robinson, 151 N.C.App. 733, 737, 567 S.E.2d 227, 229 (2002) (quoting Chicora Country Club, Inc. v. Town of Erwin, 128 N.C.App. 101, 109, 493 S.E.2d 797, 802 (1997)).
Findings of fact supported by competent evidence are binding on appeal even if evidence has been presented contradicting those findings. In re N.B., I.B., A.F., 195 N.C.App. 113, 116, 670 S .E.2d 923, 925 (2009). “Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Respondent first contends that the trial court erred by concluding that her parental rights to Ryan were subject to termination for neglect pursuant to N.C. Gen.Stat. § 7B1111 (a)(1). Under N.C. Gen.Stat. § 7B–1111 (a)(1), a trial court may terminate parental rights if the parent has “neglected the juvenile.” A “[n]eglected juvenile” is defined by statute 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.
N.C. Gen.Stat. § 7B–101(15) (2011).
A “prior adjudication of neglect may be admitted and considered by the trial court in ruling upon a later petition to terminate parental rights on the ground of neglect.” In re Ballard, 311 N.C. 708, 713–14, 319 S.E.2d 227, 231 (1984). The trial court must, however, still focus on “the fitness of the parent to care for the child at the time of the termination proceeding.” Id. at 715, 319 S.E.2d at 232 (emphasis omitted). When, as here, a child has not been in the parent's custody “for a significant period of time prior to the termination hearing, ... the trial court must also consider evidence of changed conditions in light of the history of neglect by the parent and the probability of a repetition of neglect .” In re Shermer, 156 N.C.App. 281, 286, 576 S.E.2d 403, 407 (2003).
Here, the trial court made the following findings regarding respondent mother's mental health and her compliance with treatment:
10. Respondent Mother has a long history of mental health treatment.... In summary, she rarely took medications as prescribed, but for a period of December, 2009 to July, 2010, her psychiatrist agreed not to prescribe medications because of her pregnancy. She was rarely compliant with the recommendations for therapy, except for the period of December 31, 2009 until May 10, 2010, and for a substantial portion of this period she was living at the shelter where therapy was offered.
The trial court included specific findings to support this summary, describing the instances in which respondent missed therapy appointments, stopped taking medications, and acknowledged experimenting with drugs and taking excessive amounts of over-the-counter stimulants.
11. Respondent Mother suffers from a borderline personality disorder. Characteristics of a person with this disorder are that the person oscillates between idealized and horrible relationships. A person with this disorder often has intense ups and downs in their mood. They may become very overwhelmed in stressful circumstances. When they are overcome with these intense emotions they are dysfunctional and often have difficulties with legal authorities and getting through the day. The best treatment is dialectical behavior therapy for an extensive period of time. The average is two times a month for two years. The Respondent Mother was consistent in her therapy while at the shelter, where she lived for approximately seven months. Her therapist recommended that she remain in a structured environment to complete her treatment.
12. Iredell DSS workers have observed explosive behavior of Respondent Mother in which she would refuse to listen, cry, become angry, storm out of meetings, and be unable to be calmed.
13. Respondent Mother has repeatedly told the social workers that she does not have mental health issues and does not need to take medications.
....
25. On April 6, 2010, the Respondent Mother left the shelter at the request of the shelter due to too many write-ups for rules violations.... [T]his disruption in Respondent Mother's housing made her attendance at therapy more difficult and led to a reduction in her compliance in therapy.
In addition, the court found that after Ryan was adjudicated neglected in October 2009, he was placed with respondent under certain conditions. At some time prior to a 2 February 2010 review hearing, the court was required to remove Ryan from placement with respondent. The court found that after that removal, respondent mother missed visitations with Ryan, sometimes reporting that the visits were, as the court said, “just too upsetting to her.” Further, respondent's leaving the shelter in April 2010 due to rules violations led to a reduction in her contact with Ryan.
The court found that on 22 July 2010, respondent was incarcerated for violating her probation. Her contact was then limited to contacting DSS to inquire about her children, including Ryan. Respondent was not expected to be released from prison until 9 January 2012.
In March 2010, however, her parental rights to two other children had already been terminated.
With respect to respondent's support of Ryan, the court found that although the cost of Ryan's care totaled $18,533.28 through 30 November 2010, respondent had paid nothing toward that amount even though she had received disability payments for a few months prior to her incarceration and had earned income performing odd jobs. The court noted that respondent did use wages she earned in prison for postage, crafts, and phone calls to her children, including Ryan. Respondent had also brought clothing, food, and shoes to visits with her children. Nevertheless, the court found that respondent had told DSS “that she would not work to pay DSS to help support her children.”
Further, the court made the following finding regarding respondent's behavior when transported from prison for the termination of parental rights hearing:
35. On May 26, 2011, Respondent Mother was transported from the Department of Corrections to Iredell County for the hearing on the termination of parental rights of Respondent Mother. She was belligerent with the jail staff and refused to cooperate with jail staff. Respondent Mother attempted to flood her cell and the water had to be turned off outside of her cell. Respondent Mother threw feces on her cell window, door, and the area outside the cell door. Respondent Mother stated to the jail staff, “Treat me like sh—, and I'll give you sh—.”
The court ultimately summarized the factual basis for its determination that respondent had neglected Ryan:
37. The Respondent Mother has neglected the minor child in summary, but without limitation, based upon the facts listed above:
a. Engaged in domestic violence on two occasions in the presence of the minor child;
b. Violated the safety plan causing the removal of the minor child from her care;
c. Paid zero child support for the minor child during times when the child has been removed and she was earning some income, and not receiving disability;
d. By failing to comply with mental health treatment which has contributed to her actions that led to her incarcerations, to wit: domestic violence events, the violation of the safety plan causing a removal of the minor child, the minor child being placed in an injurious environment in which the minor child was in the presence of fights between the Respondent Mother and [her boyfriend];
e. Respondent Mother willfully violated her probation causing her active sentence to be placed in effect in July, 2010, thereby removing her from the minor child;
f. Respondent Mother failed to visit with the minor child on occasion because she perceived it was to [sic] upsetting to her[;]
g. Respondent Mother failed to comply with the rules of the shelter causing the disruption in that placement thereby reducing her contact with the minor child and increasing the difficulty in complying with mental health treatment.
The court explained that “[e]ach action of the Respondent Mother which removed her from the minor child or resulted in the minor child being removed from her caused the Respondent Mother to not be able to give the minor child proper care, supervision, or discipline .”
Respondent does not challenge any of the findings as being unsupported by the evidence. They are, therefore, binding on appeal. Respondent instead contends that these findings do not support the trial court's determination that she neglected Ryan, arguing that Ryan was removed because of domestic violence and there were no further incidents of domestic violence. Respondent asserts that the trial court's findings regarding child support, failure to comply with mental health treatment, and visitation are irrelevant to the question whether there was a probability of a repetition of neglect if Ryan were returned to the custody of his mother.
To the contrary, it is well established that evidence of a failure to comply with mental health treatment, missed visitation, and a failure to help pay for the cost of a child's care is relevant to whether there is a probability of a repetition of neglect. See, e.g., In re S.D.J., 192 N.C.App. 478, 487, 665 S.E.2d 818, 824 (2008) (holding that trial court properly terminated parental rights based on neglect when it found respondent had initially attended mental health appointments and taken medication, but had more recently not complied and when because of lack of heat in residence, child was unable to visit with respondent at her home); In re E.T.S., 175 N.C.App. 32, 39–40, 623 S.E.2d 300, 304 (2005) (upholding termination of parental rights based on neglect when, among other things, respondent failed to maintain stable housing, was unemployed, failed to pay child support, did not follow through with mental health counseling, and had sporadic visitation); In re J.W., K.W., 173 N.C.App. 450, 465, 619 S.E.2d 534, 545 (2005) (upholding termination of parental rights based on neglect, in part, because court found that respondent was not complying with requirement that she obtain counseling and contribute to child support), aff'd per curiam, 360 N.C. 361, 625 S.E.2d 780 (2006); In re Yocum, 158 N.C.App. 198, 204, 580 S.E.2d 399, 403 (upholding termination of parental rights based on neglect when, among other things, respondent never paid any child support and had only limited visits with child), aff'd per curiam,357 N.C. 568, 597 S.E.2d 674 (2003).
Respondent's reliance on evidence of her compliance with her case plan a year prior to the termination of parental rights hearing is not sufficient to rebut the evidence supporting the trial court's conclusion that DSS had proven neglect. Although respondent also points to evidence that she had her own home, was not engaged in domestic violence, and was receiving income in the form of disability benefits, those facts do not preclude a determination that a repetition of neglect was probable based on the facts found by the trial court.
We hold that the trial court made sufficient findings to justify its ultimate finding that there was a “likelihood of neglect if the minor child were returned home.” Accordingly, we affirm the trial court's conclusion that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) to terminate respondent's parental rights to Ryan.
Respondent also contends that the trial court abused its discretion in concluding that the termination of her parental rights was in the best interests of Ryan. In determining whether termination of parental rights is in a juvenile's best interests, a trial court is required to consider the following factors: (1) the age of the juvenile; (2) the likelihood of adoption of the juvenile; (3) whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile; (4) the bond between the juvenile and the parent; (5) the quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement; and (6) any relevant consideration. N.C. Gen.Stat. § 7B–1110(a) (2011).
Here, the trial court's unchallenged findings of fact established that Ryan was approximately three years old at the time of the dispositional hearing. Ryan has been with his current placement for about 19 months-more than half his life. Ryan has some special needs that have been addressed by the foster parents, his behavior has greatly improved, and he is very well adjusted in his current placement. Ryan has bonded with the foster parents and the other children in the home, and the foster parents desire to adopt Ryan. On the other hand, the bond between Ryan and respondent is weak. Further, while the likelihood of adoption was deemed only “fair” because Ryan's father's parental rights had not yet been terminated, the court found that termination of respondent's parental rights would aid in the accomplishment of the permanent plan of adoption.
The trial court thus addressed the required factors under N.C. Gen.Stat. § 7B–1110(a). Based upon the trial court's findings, we cannot say that the court was manifestly unreasonable in deciding that those factors established that termination of respondent's parental rights was in Ryan's best interests. Consequently, we affirm the trial court's orders terminating respondent's parental rights.
Affirmed. Judges ELMORE and THIGPEN concur.
Report per Rule 30(e).