Opinion
No. COA15–580.
01-19-2016
In the Matter of T.C.K.
Antares S. Holloway and Stephanie Sonzogni for Carteret County Department of Social Services, petitioner-appellee. Office of the Appellate Defender, by Assistant Appellate Defender Annick Lenoir–Peek, for respondent-appellant mother. Ellis & Winters LLP, by Lauren A. Golden, for guardian ad litem.
Antares S. Holloway and Stephanie Sonzogni for Carteret County Department of Social Services, petitioner-appellee.
Office of the Appellate Defender, by Assistant Appellate Defender Annick Lenoir–Peek, for respondent-appellant mother.
Ellis & Winters LLP, by Lauren A. Golden, for guardian ad litem.
Opinion
Appeal by respondent from order entered 3 March 2015 by Judge David McFadyen in Carteret County District Court. Heard in the Court of Appeals 17 December 2015.
TYSON, Judge.
Respondent-mother appeals from an order terminating her parental rights to her son, T.C.K. We affirm the trial court's order.
I. Background
T.C.K. is the child of Respondent-mother and Donald Hall. Mr. Hall died while the termination of parental rights proceeding was pending.
The Carteret County Department of Social Services (“DSS”) became involved with Respondent-mother shortly after the death of the father of T.C.K.'s two half siblings. Mr. Hall was not the father of these juveniles. The siblings were also the subject of juvenile petitions. The siblings were placed with their paternal grandmother, who was later granted guardianship over both juveniles.
The record indicates DSS was familiar with Respondent-mother and T.C.K's father due to their history of substance abuse, domestic violence and criminal activity. T.C.K. tested positive for the presence of THC, the active ingredient in marijuana, at birth.
In December 2010, DSS received a report regarding T.C.K.'s school progress and living conditions at home. The investigation revealed fire hazards, unclean living conditions, and insect infestations. T .C.K.'s kindergarten behavior included fighting. The school recommended T.C.K. attend therapy for his anger. Respondent-mother refused to accept the school's recommendations or interventions, or to provide therapy for T.C.K. Prior to filing its petition, DSS attempted to engage the parents in services and administered drug screens.
DSS filed its juvenile petition on 27 June 2011. The petition alleged T.C.K. was neglected, in that he did not receive proper care, supervision or discipline and lived in an environment injurious to his welfare. The petition also alleged T.C.K. was a dependent juvenile since birth. T.C.K. was placed in therapeutic foster care. On 19 October 2011, the trial court adjudicated T.C.K. as neglected and dependent.
At the disposition hearing, the court ordered reunification to be the disposition plan. Respondent-mother was afforded rights of weekly visitation. Respondent made little progress on her case plan and on 28 February 2013, the court changed the permanent plan from reunification to adoption. On 19 August 2013, DSS filed its petition to terminate the parental rights of Respondent and T.C.K.'s father.
On 3 March 2015, three and a half years after the initial petition had been filed, the trial court terminated Respondent's parental rights to T.C.K. The trial court concluded three different grounds existed to terminate Respondent's parental rights pursuant to North Carolina General Statutes: (1) § 7B–1111(a)(1) neglect; (2) § 7B–1111(a)(2) failure to make reasonable progress; and (3) § 7B–1111(a)(6) incapability of providing for care and supervision for the foreseeable future. Respondent appeals.
II. Issues
Respondent argues the trial court erred in terminating her parental rights based on (1) neglect, (2) willfully failing to make reasonable progress on her case plan and (3) incapacity.
III. Standard of Review
On appeal, our standard of review for the termination of parental rights is whether the trial court's findings of fact are based on clear, cogent and convincing evidence and whether the findings support the conclusions of law.
The trial court's conclusions of law are reviewable de novo on appeal.
In re J.S.L., 177 N.C.App. 151, 154, 628 S.E.2d 387, 389 (2006) (citations and internal quotation marks omitted).
IV. Neglect
Parental rights may be terminated pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) if the court concludes the parent has neglected the child. A neglected juvenile is one who “does not receive proper care, supervision, or discipline from the juvenile's parent ... 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.” N.C. Gen.Stat. § 7B–101(15) (2013). “[T]ermination of parental rights for neglect may not be based solely on conditions which existed in the distant past but no longer exist.” In re Ballard, 311 N.C. 708, 714, 319 S.E.2d 227, 231–32 (1984). In addition to the circumstances existing upon the initial petition for adjudication of neglect, there must be evidence of a likelihood of repetition of neglect.
During a proceeding to terminate parental rights, the trial court must admit and consider evidence, find facts, make conclusions and resolve the ultimate issue of whether neglect authorizing termination of parental rights ... is present at that time. The petitioner seeking termination bears the burden of showing by clear, cogent and convincing evidence that such neglect exists at the time of the termination proceeding. As the answer to this ultimate question must be based upon the then existing best interests of the child and fitness of the parent(s) to care for it in light of any evidence of neglect and the probability of a repetition of neglect, the trial court must admit and consider all evidence of relevant circumstances or events which existed or occurred either before or after the prior adjudication of neglect.
Id. at 716, 319 S.E.2d at 232–33 (emphasis omitted) (citations omitted).
T.C.K. was initially removed from Respondent's home and placed in foster care in June 2011. Respondent argues she has made significant progress in correcting some of the conditions upon which the initial determination of neglect was based, particularly her improvements to the condition of her home.
T.C.K. was removed from Respondent's home because of Respondent's history of drug abuse, inappropriate discipline of T.C.K., refusal to comply with DSS recommendations for the safety and well-being of T.C.K., refusal to address and follow through with treatment for T.C .K.'s mental health needs, failure to provide necessities for T.C.K., failure to send T.C.K. to school, and failure to keep her home in a sanitary and pest free condition.
After adjudicating T.C.K. as neglected, the court's disposition required Respondent to repair or remove fire hazards in her home, undergo a parenting assessment, attend and participate in parenting classes, receive anger management/substance abuse/ mental health assessment and follow recommendations for treatment, and obtain and maintain employment sufficient to sustain herself and T.C.K. She was also required to cooperate with random drug screening. A positive test from the drug screen would result in suspension of her next scheduled visit with T.C.K.
The trial court made findings of fact to support its conclusions that Respondent had neglected T.C.K. The trial court found:
30. [Respondent] has not provided proper care and supervision to the juvenile; she allowed the juvenile to live in unsanitary, unsafe and cluttered conditions that created a risk of harm to the juvenile.... [Respondent] made some repairs and corrections to the items noted, but there still remains work to be done on the home. [Respondent] continues to make excuses and lay blame with others. [Respondent] admitted that she can work and can make as much as $500 in one weekend, yet continued to have safety hazards in her home.
31. Since June 2011, [Respondent] has not provided support for the juvenile although she has the ability to work and has worked. She admitted that she can earn $500 in one weekend when she works, and has earned such money in the past.
....
34. During the time that [T.C.K.] was in foster care, [Respondent] failed to maintain visitation with [T.C.K.] and as a result [T.C.K.'s] emotional well-being suffered. [Respondent] admits that she stopped visiting with [T.C.K.] in September 2012, because she felt that the visits were not “quality” visits,.... [Respondent] did not call the juvenile nor did she set up visitation with him. [Respondent] was capable of maintaining contact, as evidenced by the fact that she spent 24 days with her adult son, Chad, while he was hospitalized at Vidant hospital and also traveled across the country to California to stay with her mother who had been diagnosed with terminal illness. Although able to maintain contact with the juvenile, she did not do so. She was available to other family members yet was not available to the subject juvenile. [Respondent] continues to lay blame on circumstances and on other people, yet does not see herself at fault in not maintaining contact with [T.C.K.].
....
40. [Respondent] abused substances in the past including methamphetamine. [T.C.K.] was born positive for non-prescribed substances. During the pendency of this action, [Respondent] tested positive for marijuana. Her marijuana use affected her ability to maintain visitation when it was required that she have clean drug screens to have visits. [Respondent] missed a number of visits due to her use of marijuana.
...
43. [Respondent] has not provided any financial support to the juvenile since he was placed in foster care in June 2011. [Respondent] has worked and can work.
Findings of fact, which are supported by clear, cogent and convincing evidence, are conclusive on appeal. In re H.S.F., 182 N.C. App 739, 742, 645 S.E.2d 383, 385 (2007). The trial court's findings were supported by the testimony of T.C.K.'s therapeutic foster parent and the social worker concerning events occurring after the petition was filed in June 2011 and within the months before the termination hearing.
Where Respondent has been separated from her child for an extended period of time, DSS “must show that the parent has neglected the child in the past and that the parent is likely to neglect the child in the future.” In re C.W., 182 N.C.App. 214, 220, 641 S.E.2d 725, 729 (2007) (citing In re Ballard, 311 N.C. at 715, 319 S.E.2d at 231–32).
Respondent's most egregious act of neglect and revealing her likelihood of future neglect is her ongoing failures to either visit or to support her son. The record shows Respondent was offered visitation on her choice of weekdays. The court's findings regarding Respondent's lack of visits are based upon the testimony of T.C.K.'s licensed therapeutic foster parent, Ms. Elizabeth Corbett (“Corbett”).
Corbett testified Respondent was allowed “unfettered access” to communicate with and visit with T.C.K. T.C.K.'s social worker Nicholas Theuner (“Theuner”) also testified, notwithstanding Respondent being allowed to set up her own visit and phone schedule with T.C.K., Respondent stopped visiting her child. Even after the permanent plan of the case was changed to adoption, Respondent failed to visit her son.
In August of 2013, the trial court discontinued visitation. Thereafter, Respondent was offered unlimited opportunities to text or call T.C.K. or to communicate with his foster parents regarding his wellbeing. It is uncontested she did not avail herself of these opportunities as well.
Both Corbett and Theuner testified that Respondent did not have any communication with her son between December 2012 and July 2013. The July 2013 visit was set up by the social worker in advance of a therapy session for the child.
Respondent arrived at the visit on a new bicycle. Corbett testified that T.C.K. also learned Respondent had a new computer and had flown to California to visit T.C.K.'s maternal grandmother, who was ailing. Respondent had no further visits with her child. In her own testimony, Respondent did not refute the lack of visits, but stated she became dissatisfied with the “quality” of the visits.
The facts in the present case are analogous to In re Humphrey, 156 N.C.App. 533, 577 S.E.2d 421 (2003). In In re Humphrey, evidence in the record showed respondent had limited interaction with her child, visiting with him less than once a year during a three-year span. Id. at 540, 577 S.E.2d at 427. The respondent had also failed to financially contribute to the support of the child since the parties separated. Id. at 535, 577 S.E.2d at 424. This Court held the evidence demonstrated respondent had “willfully refused to perform her obligations as a parent and [had] withheld her presence, love, care, and opportunity to display filial affection from the child.” Id. at 540, 577 S.E.2d at 427.
It is undisputed that Respondent failed to provide any financial support for T.C.K. after he was placed in foster care in June 2011. While a parent's poverty, alone, cannot support grounds for termination of parental rights, this Court has held where “the parent had an opportunity to provide for some portion of the cost of care of the child, and forfeits that opportunity by his or her own misconduct, such parent will not be heard to assert that he or she has no ability or means to contribute to the child's care and is therefore excused from contributing any amount.” In re Bradley, 57 N.C.App. 475, 479, 291 S.E.2d 800, 802–03 (1982). In the fact statement of her brief, Respondent cites her Affidavit of Indigency, but offers no case law or support for her argument that the trial court's finding was not supported by clear, cogent and convincing evidence.
Respondent testified she cleaned houses for a living. On direct examination she testified she could make $500 during one weekend of work. Respondent acknowledged she could work and was not under any disability. The record contains evidence of trips and purchases Respondent made over the pendency of this case, which tends to show she occasionally had funds for travel or possessions, but chose not to devote any funds to the financial support of her son.
This Court has affirmed a trial court's order terminating parental rights based on neglect when the trial court found that the parent “neither provided support for the minor child nor sought any personal contact with or attempted to convey love and affection for the minor child.” In re Bradshaw, 160 N.C.App. 677, 682, 587 S.E.2d 83, 86 (2003); see also In re Apa, 59 N.C.App. 322, 296 S.E.2d 811 (1982) (finding clear and convincing evidence respondent willfully failed to provide his child with care and support where “except for an abandoned attempt to negotiate visitation and support, respondent made no other significant attempts to establish a relationship with [his son].” (internal quotation marks omitted)).
Clear, cogent and convincing evidence showed Respondent paid no support and made little or no effort to communicate with or visit her son. We affirm the trial court's conclusion that termination of parental rights based on the grounds of neglect was proper. N.C. Gen.Stat. § 7B–1111(a)(1).
V. Remaining Grounds for Termination
The trial court need find only one ground to terminate Respondent's parental rights. See, e.g., In re Humphrey, 156 N.C.App. at 540, 577 S.E.2d at 426–27 (“A finding of any one of the enumerated grounds for termination of parental rights under N.C.G.S. 7B–1111 is sufficient to support a termination.”). In light of our holding to affirm the trial court's termination on grounds of neglect, we do not address Respondent's remaining arguments concerning N.C. Gen.Stat. § 7B–1111(2), willful failure to make progress, and § 7B–1111(6), incapacity.
VI. Best Interest of the Child
Respondent does not challenge the disposition portion of the trial court's order in which the court determined termination of Respondent's rights was in T.C.K.'s best interest.
VII. Conclusion
The trial court's findings of fact on neglect are supported by clear, cogent and convincing evidence. These findings of fact support the trial court's conclusion of law concerning neglect. The trial court did not err in terminating Respondent's parental rights due to neglect pursuant to N.C. Gen.Stat. § 7B–1111(a)(1).
In light of our decision, we do not address the remaining grounds asserted in the petition. In re Humphrey, 156 N.C.App. at 540, 577 S.E.2d at 426–27. The trial court's order is affirmed.
AFFIRMED.
Judges STROUD and DIETZ concur.
Report per Rule 30(e).