Opinion
No. COA15-1366
06-07-2016
IN THE MATTER OF: T.C.R.
New Hanover County Department of Social Services, by Jennifer G. Cooke, for petitioner-appellee. Sydney Batch for respondent-appellant. Parker Poe Adams & Bernstein LLP, by Catherine R.L. Lawson, for guardian ad litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. New Hanover County, Nos. 14 JA 82, 14 JT 82 Appeal by respondent-mother from orders entered on 4 March 2015 and 6 October 2015 by Judge J.H. Corpening, II in District Court, New Hanover County. Heard in the Court of Appeals on 9 May 2016. New Hanover County Department of Social Services, by Jennifer G. Cooke, for petitioner-appellee. Sydney Batch for respondent-appellant. Parker Poe Adams & Bernstein LLP, by Catherine R.L. Lawson, for guardian ad litem. STROUD, Judge.
Respondent-mother appeals from a permanency planning order ceasing reunification efforts between her and her child, T.C.R. ("Tom"), and from a subsequent order terminating her parental rights to Tom. We affirm.
We use a pseudonym to protect the juvenile's identity.
I. Background
On 14 April 2014, the New Hanover County Department of Social Services ("DSS") filed a petition alleging that Tom, who was seven months old at the time, was a neglected juvenile and obtained nonsecure custody of Tom. After holding a hearing on 29 May 2014, the trial court entered an adjudication and disposition order on 19 June 2014, in which it adjudicated that Tom was a neglected juvenile based upon stipulated findings that DSS had been working with the family since 24 December 2013 "on mental health, parenting, and substance abuse issues with little progress or cooperation" from respondent-mother; that respondent-mother had been involuntarily committed to New Hanover Behavioral Health ("NHBH") on 6 April 2014 and had been diagnosed with depression and a mood disorder; that she tested positive for marijuana at the hospital; that after she was released, she invited another patient from NHBH to reside in her mother's home with her and Tom; and that law enforcement was called to the home, resulting in respondent-mother's arrest on an outstanding warrant charging her with failure to appear. The trial court ordered respondent-mother to: (1) enter into a family services agreement with DSS; (2) undergo a substance abuse assessment, follow any treatment recommendations, and submit to random drug screens; (3) sign releases allowing DSS and the guardian ad litem to access her drug screen results; (4) maintain a stable and substance-free residence; (5) participate in a parenting education class; and (6) undergo a comprehensive clinical assessment and follow any recommendations.
The trial court held a review hearing on 20 August 2014 and entered a review order on 8 September 2014 in which it found that respondent-mother had made "meager progress towards reunification." It found that although respondent-mother had refrained from substance abuse, she acknowledged drinking alcohol to excess, and that she had completed the intake appointment for a parenting education course but had failed to attend the first class, which disqualified her from attending the session that was then running.
The trial court held a permanency planning hearing on 12 February 2015 and received a report from DSS recommending that reunification efforts be ceased and a report from the guardian ad litem recommending that respondent-mother be given an additional three months to make progress on her case plan. The court adopted the recommendation of DSS and entered a permanency planning order ceasing reunification efforts on 4 March 2015. On 4 March 2015, respondent-mother filed notice to preserve her right to appeal the permanency planning order ceasing reunification efforts.
On 9 April 2015, DSS filed a petition to terminate the parental rights of respondent-mother and Tom's putative father ("Mr. C."). The court held a hearing on the petition on 31 August 2015 and entered an order on 6 October 2015 terminating Mr. C.'s parental rights, as well as respondent-mother's parental rights on the ground that she has neglected the juvenile and that there is a high probability that the neglect will continue in the foreseeable future. Respondent-mother gave timely notice of appeal from the termination order.
II. Permanency Planning Order
Respondent-mother appeals from both the 4 March 2015 permanency planning order ceasing reunification efforts and the 6 October 2015 termination order. But respondent-mother does not raise any issue regarding the termination order beyond arguing that the alleged errors in the permanency planning order caused the trial court to err in terminating her parental rights. As discussed below, we hold that the permanency planning order standing alone is sufficient. Accordingly, we do not review the termination order. See N.C.R. App. P. 28(b)(6) ("Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned."). A. Standard of Review
Our review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and whether the findings support the conclusions of law. The trial court's findings of fact are conclusive on appeal when supported by any competent evidence, even if the evidence could sustain contrary findings. In choosing an appropriate permanent plan under N.C. Gen. Stat. § 7B-906.1 (2013), the juvenile's best interests are paramount. We review a trial court's determination as to the best interest of the child for an abuse of discretion. Questions of statutory interpretation are questions of law, which are reviewed de novo by an appellate court.In re J.H., ___ N.C. App. ___, ___, 780 S.E.2d 228, 238 (2015) (citations and quotation marks omitted). Unchallenged findings of fact are deemed to be supported by the evidence and are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
[I]f a termination of parental rights order is entered, the appeal of the cease reunification order is combined with the appeal of the termination order.In re L.M.T., 367 N.C. 165, 170, 752 S.E.2d 453, 456-57 (2013) (construing N.C. Gen. Stat. § 7B-1001(a)(5)(a) (2011) and reviewing order ceasing reunification efforts entered under N.C. Gen. Stat. § 7B-507 (2011)). But in this case, we need not consider the termination order, because as discussed below, the permanency planning order standing alone is sufficient. B. Cessation of Reunification Efforts
. . . Because we consider both orders 'together,' incomplete findings of fact in the cease reunification order may be cured by findings of fact in the termination order.
We note that the General Assembly recently amended N.C. Gen. Stat. § 7B-1001(a)(5)(a) to cover only orders entered under N.C. Gen. Stat. § 7B-906.2(b) that "eliminat[e] reunification as a permanent plan" for "actions filed or pending on or after" 1 October 2015. See 2015-2 N.C. Adv. Legis. Serv. 236, 248-50 (LexisNexis) (reflecting sections 16 and 18 of chapter 136 of the 2015 N.C. Sessions Laws). Because this action was pending on 1 October 2015, this amendment is applicable. But N.C. Gen. Stat. § 7B-1001(a)(5)(a) still covers the permanency planning order here as it is an order entered under N.C. Gen. Stat. § 7B-906.2(b) that eliminates reunification as a permanent plan. We thus hold that our Supreme Court's treatment of N.C. Gen. Stat. § 7B-1001(a)(5)(a) in L.M.T. is still controlling.
Respondent-mother argues that the trial court's findings of fact do not support its conclusions of law that further reunification "efforts would be futile and inconsistent with [Tom's] health, safety, and need for a safe, permanent home within a reasonable period of time" and that "it is not possible for [Tom] to be placed with a parent within the next six months" pursuant to N.C. Gen. Stat. § 7B-906.1(d)(3), (e)(1) (2015). "In determining whether it is possible for the children to return home within six months of the permanency planning hearing, the court must look at the progress the parents have made in eliminating the conditions that led to the removal of the children." J.V. & M.V., 198 N.C. App. at 112, 679 S.E.2d at 845 (citation and brackets omitted).
The trial court included these determinations in its Findings of Fact 11 and 12, but we hold that they are more properly classified as conclusions of law given that they are determinations "which require[] an exercise of judgment[.]" See In re J.V. & M.V., 198 N.C. App. 108, 116-17, 679 S.E.2d 843, 848 (2009).
In determining the best interests of the child, the trial court should consider the parents' right to maintain their family unit, but if the interest of the parent conflicts with the welfare of the child, the latter should prevail. Thus, in this context, the child's best interests are paramount, not the rights of the parent.In re T.K., D.K., T.K. & J.K., 171 N.C. App. 35, 39, 613 S.E.2d 739, 741 (citations and quotation marks omitted), aff'd per curiam, 360 N.C. 163, 622 S.E.2d 494 (2005).
Although respondent-mother contends that the "trial court wholly ignored competent evidence that [she] was able to provide appropriate care and supervision to Tom[,]" she does not challenge the trial court's Finding of Fact 6 and concedes that "competent evidence support[s] the vast majority of the trial court's findings"; thus, Finding of Fact 6 is binding on appeal. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731 ("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."); J.H., ___ N.C. App. at ___, 780 S.E.2d at 238 ("The trial court's findings of fact are conclusive on appeal when supported by any competent evidence, even if the evidence could sustain contrary findings.") (citation and quotation marks omitted). Finding of Fact 6 demonstrates respondent-mother's willful lack of progress in complying with her case plan:
That the Court heard testimony from [respondent-mother]. She has maintained employment at Arby's since the last hearing, and she continues to attend [college]. She has been unable to obtain independent housing. She has failed to comply with her Family Services Agreement. She remains resistant to engaging in the recommended services. She has failed to complete a comprehensive clinical assessment indicating that she does not need the service. [Respondent-mother] attended some of the parenting classes offered, but she failed to complete the course indicating that she does not need parenting classes. She has failed to comply with the terms of her probation and was an absconder for two months prior to incarceration on January 23, 2015. She was released on February 5, 2015. [Respondent-mother] self-reports use of alcohol and marijuana to cope with stress. On October 10, 2014, she submitted to a random drug screen that was positive for marijuana [at] 27 ng/ml. On January 23, 2015, [DSS] requested that [respondent-mother] submit to a random drug screen to which she self-reported marijuana use. She requests that [her mother be] reconsidered as a placement option. [Respondent-mother] objects to [Mr. C.] being considered for placement as he has never met [Tom] and does not pay child support.(Emphasis added.) We hold that Finding of Fact 6 supports the trial court's conclusions that further reunification "efforts would be futile and inconsistent with [Tom's] health, safety, and need for a safe, permanent home within a reasonable period of time" and that "it is not possible for [Tom] to be placed with a parent within the next six months."
Respondent-mother next contends that the trial court "did not afford [her] sufficient time to comply with her case plan in order to reunify with [Tom]" and erred in rendering its decision to cease reunification efforts at the 12 February 2015 hearing, less than twelve months after DSS took nonsecure custody of Tom on 14 April 2014. (Original in italics.) But N.C. Gen. Stat. § 7B-906.1(a) does not require the trial court to delay holding a permanency planning hearing; rather, it provides that the trial court shall hold a permanency planning hearing "[w]ithin 12 months of the date of the initial order removing custody[.]" (Emphasis added.) Accordingly, we hold that the trial court did not err in rendering its decision to cease reunification efforts less than twelve months after DSS took nonsecure custody of Tom.
Respondent-mother emphasizes that the guardian ad litem recommended that the trial court wait another three months before ceasing reunification efforts. But the trial court was not required to follow the guardian ad litem's recommendation. We note that the guardian ad litem also recognized respondent-mother's lack of progress in complying with her case plan:
[Respondent-mother] has not met any of the requirements of her Family Services Agreement. If she does not commit to attending parenting classes, submitting to random drug screens, completing comprehensive clinical and substance abuse assessments, obtaining permanent housing, securing full-time employment within the next three (3) months, then reunification efforts should cease and plans for adoption should proceed.(Emphasis added.) In addition, as discussed further below, respondent-mother's history of noncompliance predated the filing of the petition, and the trial court considered evidence of DSS's efforts prior to filing as well. We hold that the trial court did not err in deciding to cease reunification efforts at the 12 February 2015 permanency planning hearing.
Respondent-mother next contends that the trial court erred in considering evidence that predated the 29 May 2014 adjudication and disposition hearing. She argues that it was "unfair for DSS and the trial court to rely on [respondent-mother's] efforts or lack [thereof] between December 2013 and May 2014 to support the cessation of efforts with her[,]" citing generally to In re A.G.M., ___ N.C. App. ___, 773 S.E.2d 123 (2015) and N.C. Gen. Stat. § 7B-904 (2013). N.C. Gen. Stat. § 7B-904(c) provides in pertinent part:
At the dispositional hearing or a subsequent hearing the court may determine whether the best interests of the juvenile require that the parent . . . undergo psychiatric, psychological, or other treatment or counseling directed toward remediating or remedying behaviors or conditions that led to or contributed to the juvenile's adjudication or to the court's decision to remove custody of the juvenile
from the parent . . . . If the court finds that the best interests of the juvenile require the parent . . . [to] undergo treatment, it may order that individual to comply with a plan of treatment approved by the court or condition legal custody or physical placement of the juvenile with the parent . . . upon that individual's compliance with the plan of treatment.(Emphasis added.) In A.G.M., this Court held that
neither the trial court nor [the Guilford County Department of Health and Human Services] had the authority in [that] neglect and dependency proceeding to require [the] [r]espondent to sign any service agreement or submit to any testing, evaluation, or therapy in relation to any custody determinations concerning the children prior to entry of the . . . disposition and permanency planning order.___ N.C. App. at ___, 773 S.E.2d at 131 (citations omitted).
. . . It was at the . . . disposition and permanency planning hearing that the trial court first obtained authority to order child support . . . and only after entering the order[,] . . . that any order of child support could go into effect.
While it is true that the trial court first obtained the authority to order respondent-mother to comply with a case plan at the 29 May 2014 adjudication and disposition hearing, which went into effect upon entry of the adjudication and disposition order on 19 June 2014, nothing in N.C. Gen. Stat. § 7B-904 or A.G.M. prevents the trial court from considering respondent's actions and DSS's efforts predating the 29 May 2014 hearing. See id. In addition, we note that N.C. Gen. Stat. § 7B-906.1(c) provides:
At each hearing, the court shall consider information from the parents, the juvenile, the guardian, any person providing care for the juvenile, the custodian or agency with custody, the guardian ad litem, and any other person or agency that will aid the court's review. The court may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, or testimony or evidence from any person that is not a party, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition.N.C. Gen. Stat. § 7B-906.1(c). "In juvenile proceedings, trial courts may properly consider all written reports and materials submitted in connection with said proceedings." In re Ivey, 156 N.C. App. 398, 402, 576 S.E.2d 386, 390 (2003) (citation omitted). Although it had not yet been twelve months since the filing of the petition and the entry of the order for nonsecure custody on 14 April 2014, the trial court properly considered respondent-mother's circumstances and progress, or lack thereof, leading up to the filing of the petition. See id.; N.C. Gen. Stat. § 7B-906.1(c). Respondent-mother's history of noncompliance with DSS's efforts to assist her with mental health issues, parenting skills, and cessation of substance abuse started before the filing of the petition, and the trial court could consider this history. Accordingly, we hold that the trial court did not err in considering evidence predating the 29 May 2014 adjudication and disposition hearing.
Respondent-mother acknowledges that DSS had been involved with the family since December 2013 but argues that she was not "placed on notice that failure to complete her case plan would result in a change in Tom's permanent plan" until 29 May 2014, when the trial court rendered its order requiring her to engage in various services to regain custody of Tom. But respondent-mother cites to no legal authority, nor do we find any, to suggest that DSS or the trial court failed to provide adequate notice that the trial court might order the cessation of reunification efforts.
Respondent-mother next contends that the trial court erred in failing to state in the permanency planning order "what efforts or services [she] needed to complete in order to reunify with Tom" and in failing to place her "on notice of what she needed to do to change the permanent plan back to reunification[.]" As a practical matter, we believe it should have been quite obvious what respondent-mother would need to do to be able to reunify with Tom: stop her substance abuse, maintain a "stable and substance free residence[,]" participate in counseling, follow her therapist's recommendations, complete parenting classes, and comply with the terms of her probation. But respondent-mother cites no authority, nor do we find any, to support her argument that the trial court's order needed to include any provisions of this sort. In addition, the trial court concluded that DSS had made "reasonable efforts" toward reunification and had assisted respondent-mother "with needed services[.]" The trial court's conclusions of law that further reunification "efforts would be futile and inconsistent with [Tom's] health, safety, and need for a safe, permanent home within a reasonable period of time" and that "it is not possible for [Tom] to be placed with a parent within the next six months" support its decision to cease reunification efforts.
III. Conclusion
For the foregoing reasons, we affirm the trial court's permanency planning order ceasing reunification efforts and the trial court's order terminating respondent-mother's parental rights.
AFFIRMED.
Chief Judge McGEE and Judge BRYANT concur.
Report per Rule 30(e).