Opinion
No. COA12–55.
2012-07-3
In the Matter of S.N.G.
J. Tyrone Browder, for Petitioner Stokes County Department of Social Services. J. Thomas Diepenbrock, for Respondent-mother.
Appeal by Respondent-mother from orders entered 11 October 2011 by Judge Charles M. Neaves, Jr., in Stokes County District Court. Heard in the Court of Appeals 12 June 2012. J. Tyrone Browder, for Petitioner Stokes County Department of Social Services. J. Thomas Diepenbrock, for Respondent-mother.
Pamela Newell, GAL Appellate Counsel, North Carolina Administrative Office of the Courts, for Guardian ad Litem.
STEPHENS, Judge.
Respondent K.H., the mother of S.N.G., appeals from orders terminating her parental rights. After careful review, we affirm.
Initials are used to protect the identity of the juvenile.
On 27 August 2010, the Stokes County Department of Social Services (“DSS”) filed a petition alleging that S.N.G. was a neglected and dependent juvenile. DSS had received a child protective services report alleging that Respondent-mother had called 911 to report a sick child and, upon arrival, emergency medical services and law enforcement found Respondent-mother intoxicated and uncooperative. The report further alleged that S.N.G. had a fever of 102.2 degrees and that Respondent-mother refused medical treatment for the child, declined to take an alcohol/sobriety test, and locked herself inside the home. Respondent-mother was arrested for underage drinking and resisting/delaying law enforcement. A social worker responded to the home and was unable to develop a plan of care for the juvenile because Respondent-mother and her family were uncooperative. The juvenile was taken into nonsecure custody and placed in foster care. On 30 September 2010, S.N.G. was adjudicated a neglected and dependent juvenile. The court ordered that custody remain with DSS, set reunification as the permanent plan for the juvenile, and ordered Respondent-mother to comply with a family services case plan.
On 30 June 2011, DSS filed a motion to terminate Respondent-mother's parental rights, alleging that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) (neglect), (3) (failure to pay support), and (6) (dependency) (2011). On 19 August 2011, Respondent-mother moved to dismiss. The trial court denied the motion. On 11 October 2011, the court entered orders terminating Respondent-mother's parental rights after concluding that grounds existed pursuant to section 7B–1111(a)(1) and (6). Respondent-mother appeals.
Discussion
On appeal, Respondent-mother argues that (1) the motion to terminate her parental rights did not allege sufficient facts to support termination; (2) the trial court erred in denying her motion to continue; (3) the findings of fact regarding neglect are not supported by competent evidence and, in turn, do not support the conclusion of law that S.N.G. would likely be neglected if returned to the care of Respondent-mother; and (4) the court's conclusion of law that grounds for termination existed based on dependency is not supported by the findings of fact. For the reasons discussed herein, we affirm.
Sufficiency of Motion to Terminate
Respondent-mother first argues that the motion to terminate her parental rights did not allege facts sufficient to support termination of her parental rights. Specifically, Respondent-mother asserts the motion contained only a bare recitation of the alleged statutory grounds for termination. We disagree.
A petition or motion seeking to terminate parental rights must state “[f]acts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist.” N.C. Gen.Stat. § 7B–1104(6) (2011). “While there is no requirement that the factual allegations be exhaustive or extensive, they must put a party on notice as to what acts, omissions or conditions are at issue.” In re Hardesty, 150 N.C.App. 380, 384, 563 S.E.2d 79, 82 (2002).
Here, DSS's motion specifically alleged that
the juvenile was adjudicated neglected September 30, 2010, and the circumstances constituting the neglect still exist as of the date of this motion. The circumstances constituting the neglect are that the mother has willfully failed to correct the conditions which constituted the neglect when the Department of Social Services took custody of the juvenile; and, there is a reasonable likelihood of such neglect continuing in the future because the mother has failed to comply with her case plan to correct the conditions constituting the neglect.
We conclude that the above allegations were sufficient to put Respondent-mother on notice regarding the acts, omissions, or conditions at issue. Rather than merely reciting the statutory grounds for termination, the motion cited the adjudication of neglect, and alleged that the conditions previously found to constitute neglect continued to exist and that neglect was likely to continue in the future due to Respondent-mother's failure to comply with the case plan that had been entered into to correct the neglect. Accordingly, we hold that the motion complied with section 7B–1104(6) and was sufficient to confer subject matter jurisdiction over the matter on the trial court.
Motion to Continue
Respondent-mother next argues that the trial court erred by denying her motion to continue the termination hearing. We disagree.
Section 7B–803 of our General Statutes provides that:
The court may, for good cause, continue the hearing for as long as is reasonably required to receive additional evidence, reports, or assessments that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery. Otherwise, continuances shall be granted only in extraordinary circumstances when necessary for the proper administration of justice or in the best interests of the juvenile.
N.C. Gen.Stat. § 7B–803 (2011). “A trial court's decision regarding a motion to continue is discretionary and will not be disturbed on appeal absent a showing of abuse of discretion. Continuances are generally disfavored, and the burden of demonstrating sufficient grounds for continuation is placed upon the party seeking the continuation.” In re J.B., 172 N.C.App. 1, 10, 616 S.E.2d 264, 270 (2005) (citations omitted). However, if the motion to continue raises a constitutional issue, then the court's ruling involves a question of law and is fully reviewable. State v.. Jones, 342 N.C. 523, 530–31, 467 S.E.2d 12, 17 (1996) (citations omitted).
In the instant case, counsel was appointed for Respondent-mother on 4 August 2011, and the hearing was initially set for 7 September 2011. Respondent-mother's counsel later sought and received a continuance, and the hearing was rescheduled for 15 September 2011. At the outset of the hearing on 15 September 2011, Respondent-mother's counsel requested another continuance because he had just received discovery that morning that was “approximately two inches thick.” The court denied the motion.
Respondent-mother contends that the denial of the motion to continue violated her constitutional right to effective assistance of counsel, because her trial counsel was deprived of the opportunity to review and appropriately respond to the discovery. We are not persuaded. Respondent-mother makes conclusory arguments that a continuance was necessary so that counsel could better address the discovery received on the morning of the hearing. Respondent-mother fails to disclose, however, the contents of the discovery, its relevance to the termination hearing, and most importantly, how counsel would have been better prepared for the hearing had he had the opportunity to review said discovery. See In re D.Q.W., 167 N.C.App. 38, 41–42, 604 S.E.2d 675, 677 (2004) (finding no prejudice where the respondent did not explain why his counsel had inadequate time to prepare for the hearing, what specifically his counsel hoped to accomplish during the continuance, or how preparation would have been more complete had the continuance motion been granted). Based on the record before us, we conclude that Respondent-mother failed to bear her burden of demonstrating that sufficient grounds existed to grant the continuance. Consequently, we find no abuse of discretion.
Findings of Fact and Conclusion of Neglect
Respondent-mother also argues that several of the trial court's findings of fact are not supported by competent evidence in the record, and that the court erred by concluding that grounds existed to terminate her parental rights. We disagree.
Section 7B–1111 sets out the statutory grounds for terminating parental rights. A finding of any one of the statutory grounds is sufficient to support termination. In re Taylor, 97 N.C.App. 57, 64, 387 S.E.2d 230, 233–34 (1990). “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) (citation omitted).
“Neglected juvenile” is defined 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 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 made the following findings of fact about the events that led to the removal of the juvenile from Respondent-mother's care:
10. On August 27, 2010, the DSS on call social worker, Mary Francis Pulliam, received a report from the Stokes County Sheriff's Department regarding the juvenile and responded immediately by visiting the scene of the incident. At 4:50 AM that morning, the mother of the juvenile had contacted emergency services because the juvenile had a temperature of 102 degrees. Upon observing her slurred speech, self-contradiction and the smell [of] alcohol on her breath, the police questioned the mother about her alcohol use. The mother refused medical attention for the child, refused to take an alcohol/sobriety test and locked herself into her house with the juvenile who was one year[ ]old at the time. Upon arriving at the scene, the social worker spoke with the mother and attempted to establish temporary custody for the juvenile with other family members present, but none were found to be suitable due to their admitted consumption of alcohol and uncooperative attitude towards the social worker.
11. On August 27, 2010 the mother was arrested and transported to jail. She was restrained for screaming, stomping, and kicking the vehicle, as well as resisting arrest. She was charged with underage consumption of alcohol and resisting/delaying law enforcement.
Respondent-mother contends that these findings were based on incompetent evidence, namely, the hearsay testimony of a social worker who did not witness the above events and instead based her testimony on DSS records. “In juvenile proceedings, trial courts may properly consider all written reports and materials submitted in connection with said proceedings.” In re Shue, 63 N.C.App. 76, 79, 303 S.E.2d 636, 638 (1983), modified and affirmed, 311 N . C. 586, 319 S.E.2d 567 (1984). In addition, “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. at 713–14, 319 S.E.2d at 231. “Where there is competent evidence in the record supporting the court's findings, we presume that the court relied upon it and disregarded [any] incompetent evidence.” Best v. Best, 81 N.C.App. 337, 342, 344 S.E.2d 363, 366 (1986).
The findings of fact quoted above concern the events underlying the prior adjudication of neglect, and mirror closely the findings made in the prior adjudication order. Thus, even assuming that hearsay evidence was erroneously admitted, the DSS records and prior adjudication order were competent evidence to fully support the findings of fact quoted above, and we must presume that the trial court disregarded any hearsay evidence. This argument is overruled.
The court also made the following findings of fact:
15. On September 30, 2010, the juvenile was adjudicated neglected and dependent as a result of being subjected to an environment injurious to her welfare. A disposition order was also entered providing: ... (3) that [Respondent-]mother comply with her Family Services Case Plan[.]
16. On September 30, 2010, [Respondent-]mother signed a Family Services Case Plan and agreed to: (1) schedule, complete and attend a mental health assessment and follow all recommendations; (2) schedule, complete and attend a substance abuse assessment and follow all recommendations; (3) comply with random drug screens and pill counts; (4) establish and maintain a suitable, clean, safe and stable home environment for herself and the juvenile for a minimum of six months; (5) obtain and maintain employment or financial resources for six months; (6) complete parenting classes; and (7) obtain a psychological/parenting capacity evaluation and follow recommendations.
17. On November 19, 2010, [Respondent-]mother completed an intake evaluation at Daymark Recovery Services, Inc. Dual diagnosis group sessions, individual therapy and psychiatric evaluation were recommended. [Respondent-]mother did not follow these recommendations and missed her therapy appointment on January 19, 2011.
18. [Respondent-]mother did not schedule, complete or attend a substance abuse assessment.
19. [Respondent-] mother refused drug screen requests on: September 30, 2010; October 4, 2010; October 15, 2010; October 19, 2010; November 16, 2010; and again on February 1, 2011.
20. [Respondent-]mother has not established a safe home for the juvenile, but has lived in six [ ] places over the past year. DSS attempted to verify each address but got no response from [Respondent-]mother. [Respondent-]mother was jailed on: August 27, 2010; November 23–24, 2010; November 27, 2010; January 9–15, 2011; January 30–31, 2011; February 1–3, 2011; and again [on] August 9, 2011.
21. [Respondent-]mother has secured no source of employment or financial security; has attended no parenting classes despite their availability, and has not obtained a parenting capacity assessment.
....
28. From September 9, 2010, through March 20, 2011, [Respondent-]mother exercised sporadic visitation with the juvenile and attended only seventeen of fifty-two scheduled visitations. During one such visit, the Guardian Ad Litem noted that [Respondent-]mother was responsive to the juvenile's custodial needs such as changing her diaper and putting a sweater on her when the temperature dropped. However, the Guardian Ad Litem also noted that there was little communication between [Respondent-]mother and the juvenile and the mother spent most of the visit talking with the juvenile's grandmother who was present contrary to the visitation plan. The juvenile did not appear to be excited to see [Respondent-]mother nor upset when she left.
29. Since DSS took custody of the juvenile, [Respondent-]mother has taken very little action to regain custody of the juvenile or make any progress on her Family Services Case Plan. Other than sporadic visitation, [Respondent-] mother has made no effort to contact the juvenile. [Respondent-]mother has had no contact with the juvenile since March 20, 2011. The lack of contact by [Respondent-]mother constitutes continuing neglect.
30. [Respondent-]mother engaged in criminal activity, which she knew or should have known would result in her incarceration and inability to care for the juvenile. This voluntary conduct on the part of [Respondent-]mother constitutes neglect. After [Respondent-]mother entered into her case plan on September 30, 2010, she was arrested on seven occasions.
Respondent-mother does not challenge these findings of fact, which are thus binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (unchallenged findings are deemed supported by competent evidence and are binding on appeal).
We conclude that competent evidence and the court's accordant findings of fact support the court's finding that there would likely be a repetition of neglect should the juvenile be returned to Respondent-mother's care. Accordingly, we hold that the trial court did not err by concluding that grounds existed to terminate Respondent-mother's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(1).
Having concluded that grounds existed pursuant to section 7B–1111(a)(1) to support the trial court's order, we need not address the remaining ground found by the court to support termination nor Respondent-mother's arguments related thereto. See Taylor, 97 N.C.App. at 64, 387 S.E.2d at 233–34. The orders terminating Respondent-mother's parental rights are
AFFIRMED. Chief Judge MARTIN and Judge HUNTER, ROBERT C., concur.
Report per Rule 30(e).