Opinion
No. COA16-301
10-18-2016
IN THE MATTER OF: T.H.H.
Regina Floyd-Davis for petitioner-appellee New Hanover County Department of Social Services. Cranfill Sumner & Hartzog LLP, by Laura E. Dean, for guardian ad litem. Robert W. Ewing for respondent-appellant father. Rebekah W. Davis for respondent-appellant mother.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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, No. 14 JT 243 Appeal by respondents from order entered 13 January 2016 by Judge J. H. Corpening, II., in New Hanover County District Court. Heard in the Court of Appeals 26 September 2016. Regina Floyd-Davis for petitioner-appellee New Hanover County Department of Social Services. Cranfill Sumner & Hartzog LLP, by Laura E. Dean, for guardian ad litem. Robert W. Ewing for respondent-appellant father. Rebekah W. Davis for respondent-appellant mother. INMAN, Judge.
Respondents ("Mother" and "Father") appeal from an order terminating their parental rights as to the minor child T.H.H. ("Tina"). We affirm.
We use the pseudonym adopted by the parties to protect the juvenile's identity.
On 7 October 2014, the New Hanover County Department of Social Services ("DSS") obtained nonsecure custody of ten-year-old Tina and filed a petition alleging she was a neglected juvenile. See N.C. Gen. Stat. § 7B-101(15) (2015). At a hearing on 19 November 2014, the parties stipulated to the following amended allegations with regard to Tina's status as neglected:
[DSS] has received seven (7) Child Protective Services Reports regarding this family and the Juvenile's safety and well-being. In one (1) report, services were needed. In the other six (6) reports, services were recommended.
[Tina] has been exposed to much violence and chronic neglect in the past ten years. [She] was visiting her grandparents and her mother when her [g]randmother killed her grandfather. [Tina] was sleeping upstairs. The maternal grandmother ultimately pled to voluntary manslaughter . . . . [Tina] was a passenger in the car when her mother led law enforcement on a high speed chase. [Tina] has lived with her father and two (2) different significant others, wherein domestic discord occurred.
[Tina] has been diagnosed with ADHD, and is prescribed medication, which is administered inconsistently. [Her] behavior has declined to the extent that she has been reduced to a half day of school.
On September 16, 2014, [Tina] disclosed the extent of the household problems, and cried inconsolably. She disclosed that her father was using heroin and marijuana. . . . [Father] acknowledges the use of marijuana, but denies the use of heroin. Yet he tested positive for marijuana and 5099 ng of morphine.
[DSS] implemented a Safety Plan with [Father's girlfriend, Ms. Y.] that [Father] would leave the household, and [Ms. Y.] would provide care for [Tina]. However, this plan has been violated on three occasions. . . . [Ms. Y.] has informed the school that she . . . will no longer be involved with the family.
[Mother] is currently incarcerated pursuant to probation violations, and is scheduled to enter Black Mountain for
substance abuse treatment. She is not in a position to provide appropriate care for her daughter.In an Order on Adjudication and Disposition entered 8 December 2014, the trial court adopted these stipulated facts, adjudicated Tina a neglected juvenile, and placed her in DSS custody.
Both respondents were incarcerated at the time of the November 2014 hearing. The court ordered Father to obtain mental health and substance abuse assessments following his release from jail and comply with any treatment recommendations, to submit to random drugs screens as requested by DSS or Tina's guardian ad litem ("GAL"), to complete a parenting class and domestic violence assessment, and to secure stable housing and income. Mother was ordered to complete the treatment program at Black Mountain and comply with all discharge recommendations. Upon her release, she was to obtain a mental health evaluation and comply with any recommended treatment, submit to random drug screens, complete a parenting class, and secure stable housing and income. The court granted Mother and Father one hour per week of supervised visitation each and allowed them to send letters to Tina through DSS.
The trial court held a review hearing on 11 March 2015. By order entered 1 April 2015, it found that Mother had "made no progress on her case plan" and had neither visited Tina nor maintained contact with DSS after her release from Black Mountain in December 2014. Although Mother reported residing in Havelock, North Carolina, the court found "her actual whereabouts [are] unknown." Father had not attended visitation since 7 January 2015 and "had to be redirected regarding whispering in [Tina's] ear" during his "sporadic" visits with the child. The court found Father's actions "not consistent with a plan of reunification." It noted that Tina had experienced "severe neglect when cared for by her parents" and was hospitalized in January 2015 for a "panic attack induced by stress, exhaustion and cutting behavior." Though eleven years old, Tina was reading at a second-grade level and had been provided an Individual Education Plan at school. She was placed in therapeutic foster care and received individual therapy and medication management services. The court conditioned Mother's and Father's visitation with Tina on the approval of her therapist and ordered respondents to "engage in [Tina's] counseling if requested by the [] therapist."
Following a permanency planning hearing on 17 June 2015, the trial court ceased reunification efforts and established a permanent plan of adoption. The court found Mother had "not completed the objective in her [c]ase [p]lan," had "only minimal contact with [DSS]," and had not seen Tina since she was placed in nonsecure custody. Mother had been arrested on 24 April 2015 and was serving a prison sentence of eight to nineteen months. The court found that Father's whereabouts were unknown, though he was believed to be in Myrtle Beach, South Carolina, and that he "has not complied with any Court directives or recommendations of [DSS]." Father's counsel reported having no contact with Father since the prior review hearing.
DSS filed a petition to terminate respondents' parental rights on 14 August 2015. As grounds for termination, DSS alleged that respondents had neglected Tina and were likely to repeat the neglect if the child was returned to their care, and that respondents had willfully abandoned Tina for at least six consecutive months immediately preceding the petition's filing. After a hearing on 16 December 2015, the trial court adjudicated the existence of both grounds for termination as each to respondent and determined that termination of their parental rights was in Tina's best interest. Respondents filed timely notices of appeal from the 13 January 2016 termination order.
Respondents now claim the trial court erred by adjudicating the existence of grounds to terminate their parental rights based on neglect and willful abandonment under N.C. Gen. Stat. § 7B-1111(a)(1) and (7). We apply the following standard of review to their arguments:
[W]e must determine whether the [court's] findings of fact are supported by clear, cogent and convincing evidence, and whether the findings support the court's conclusions of law. If there is competent evidence, the findings of the trial court are binding on appeal. An appellant is bound by any unchallenged findings of fact. . . . We review conclusions of law de novo.
Respondents challenge each of the grounds for termination found by the district court. However, it is well established
that any single ground . . . is sufficient to support an order terminating parental rights. Therefore, if we determine that the court properly found one ground for termination under N.C. Gen. Stat. § 7B-1111(a), we need not review the remaining grounds.In re B.S.O., 234 N.C. App. 706, 707-08, 760 S.E.2d 59, 62 (2014) (citations and internal quotation marks omitted).
Father challenges the trial court's determination that he abandoned Tina. Under N.C. Gen. Stat. § 7B-1111(a)(7), the trial court may terminate parental rights if "[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion[.]" DSS filed the petition to terminate Father's rights on 14 August 2015. Therefore, we assess Father's conduct during "the determinative period" from 14 February 2015 to 14 August 2015. In re S.R.G., 195 N.C. App. 79, 84, 671 S.E.2d 47, 51 (2009).
"Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child." In re Young, 346 N.C. 244, 251, 485 S.E.2d 612, 617 (1997) (quoting In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986)). "Whether a biological parent has a willful intent to abandon his child is a question of fact to be determined from the evidence." In re S.Z.H., ___ N.C. App. ___, ___, 785 S.E.2d 341, 347 (2016) (quoting In re S.R.G., 195 N.C. App. at 84, 671 S.E.2d at 51). As we have emphasized, however,
[a] judicial determination that a parent willfully abandoned her child, particularly when we are considering a relatively short six month period, needs to show more than a failure of the parent to live up to her obligations as a parent in an appropriate fashion; the findings must clearly show that the parent's actions are wholly inconsistent with a desire to maintain custody of the child.Id. at ___, 785 S.E.2d at 347 (quoting In re S.R.G., 195 N.C. App. at 87, 671 S.E.2d at 53) (emphasis omitted).
The evidence and the trial court's uncontested findings of fact show that from 14 February 2015 through 14 August 2015, Father lived in South Carolina, did no work on his case plan, attended no hearings, did not communicate with his attorney, and had only minimal contact with DSS. Social Worker Elysia Flynn described the extent of Father's communication during this period as, "[a]t most, . . . three to five voicemails[.]" Father never provided DSS with a South Carolina address. When Flynn attempted to return his phone call, he hung up on her after she identified herself. Father testified that, after his visitation with Tina was suspended in January 2015, he quit his job and left North Carolina "because [he] was so depressed." He spent "[a]bout five months or so" in South Carolina living with his ex-girlfriend, Ms. Y. Father acknowledged using drugs while in South Carolina but asserted that he "quit doing drugs and . . . left the State" after he "found out that they were trying to terminate [his] parental rights. . . ." He contacted DSS in September 2015 and began to work the case plan. Only after returning to North Carolina in September 2015 did Father make an effort to correspond with Tina or contact her therapist.
Father last visited Tina on 2 January 2015. Following Tina's hospitalization at Holly Hill, visitation was suspended pending approval of her therapist.
We hold the trial court's findings support its conclusion that Father willfully abandoned Tina. See In re B.S.O., 234 N.C. App. at 713, 760 S.E.2d at 65 ("In light of respondent-father's single phone call to respondent-mother and his children during the six months immediately preceding 9 May 2011, the district court did not err in finding that he willfully abandoned the children."); In re M.D., 200 N.C. App. 35, 43, 682 S.E.2d 780, 785-86 (2009); In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982). Having upheld the adjudication under N.C. Gen. Stat. § 7B-1111(a)(7), we need not consider Father's arguments regarding the second ground for termination found by the court. In re B.S.O., 234 N.C. App. at 708, 760 S.E.2d at 62.
Mother challenges the adjudication under N.C. Gen. Stat. § 7B-1111(a)(1), which allows the court to "terminate the parental rights to a child upon a finding that the parent has neglected the child." In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 427 (2003) (citation omitted). A "neglected" juvenile is defined, inter alia, as one "who does not receive proper care, supervision, or discipline from the juvenile's parent . . .; or who has been abandoned; . . . 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). "Neglect must exist at the time of the termination hearing, or if the parent has been separated from the child for an extended period of time, the petitioner 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) (citation omitted). In In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984), our Supreme Court adopted the following standard for adjudicating grounds for termination based on neglect in this context:
[E]vidence of neglect by a parent prior to losing custody of a child - including an adjudication of such neglect - is admissible in subsequent proceedings to terminate parental rights. The 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. The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding.(internal citation and emphasis omitted).
Mother claims the trial court erred in applying the Ballard's "prior neglect and the probability of a repetition of neglect" framework to her case. She suggests that "the only evidence of prior neglect was the underlying adjudication order involving the Father's neglect of Tina." Mother argues that "the evidence did not show if or when [she] ever had physical custody of Tina[,]" and that Father "had clearly been caring for Tina on his own for some time" when DSS filed the neglect petition on 7 October 2014. Mother concedes that the 8 December 2014 Order on Adjudication and Disposition includes findings about two incidents in which (1) Mother led police on a high-speed chase with Tina in the car and (2) Tina's maternal grandmother killed her grandfather while Tina was in the home visiting Mother. However, she insists the court heard no "specific evidence" about the details of these incidents or when they occurred. "Without evidence of any prior neglect while [she] had custody of Tina," Mother contends, "[DSS] failed to show neglect at the time of the termination hearing."
We are not persuaded by Mother's argument. It is true that Tina was living with Father and that Mother was confined in New Hanover County Jail at the time DSS filed the juvenile petition on 7 October 2014. However, we find no authority for Mother's position that a parent who does not reside with the child at the time a juvenile petition is filed cannot participate in the neglect of that child. Such a parent may, for example, fail to provide proper care, supervision, or discipline while visiting or taking care of the child, or may otherwise contribute to a living environment that is injurious to the child's welfare. Indeed, the petition filed by DSS alleged just such activity by Mother as part of its allegations establishing Tina's status as a neglected juvenile under N.C. Gen. Stat. § 7B-101(15). Mother stipulated to these allegations, including the allegation that Tina "has been exposed to . . . chronic neglect in the past ten years." (Emphasis added.) The Order on Adjudication and Disposition recounts the parties' stipulated findings in their entirety to support Tina's adjudication as a neglected juvenile. See In re A.B., 179 N.C. App. 605, 609, 635 S.E.2d 11, 15 (2006) ("[T]he purpose of the adjudication hearing is to adjudicate 'the existence or nonexistence of any of the conditions alleged in a petition.' ") (quoting N.C. Gen. Stat. § 7B-802). To the extent Mother argues that Tina's exposure to her grandfather's killing and to Mother's high-speed flight from police were too remote in time to support an allegation of neglect in a petition filed on 7 October 2014, we hold it was for THE trial court to weigh the significance of these events. Cf. In re A.B., 179 N.C. App. at 609, 635 S.E.2d at 15 (concluding that "the trial court did not err in finding the time period between the child's birth and the filing of the petition as the relevant period for the adjudication"); In re McDonald, 72 N.C. App. 234, 241, 324 S.E.2d 847, 851 (1985) (upholding court's consideration of events occurring two years beforehand in assessing the parent's fitness to care for the child at the time of the termination hearing).
Because Tina's neglected status was attributable in part to Mother, we distinguish the case cited in her brief to this Court, In re J.G.B., 177 N.C. App. 375, 382, 628 S.E.2d 450, 455-56 (2006), in which there was no evidence of neglect by the respondent-mother prior to DSS taking custody of the child. See also In re M.A.W. ___ N.C. App. ___, ___, 787 S.E.2d 461, 463 (2016) (reversing termination of the respondent-father's parental rights under N.C. Gen. Stat. § 7B-1111(a), where the trial court found that the father "was the non-offending parent at the time of [the child's] removal[,]" and "there was no evidence before the trial court, and no findings of fact, that father had previously neglected [the child]").
We further hold that the trial court's uncontested findings support its conclusion "that [Mother] has neglected [Tina], and there is a high probability that there will be a repetition of neglect . . ." if Tina were returned to her care. See In re C.W., 182 N.C. App. at 220, 641 S.E.2d at 729. The court found that before entering DSS custody on 7 October 2014, Tina "lived with her mother and father, separately and jointly, since birth[;]" that she "has been neglected for a significant portion of said period[;]" that "Wake County Department of Social Services had been providing services to [Mother] and [Tina], prior to sending [Tina] to New Hanover County to reside with [Father;]" and that DSS "had received numerous Child Protective Services Reports" before seeking custody of Tina. The court acknowledged that Tina was living with Father at the time DSS took her into custody and that Mother was in jail "awaiting transport to Black Mountain for substance abuse treatment." The court noted Tina's adjudication as a neglected juvenile at the 19 November 2014 hearing, and listed the resulting requirements of Mother's court-ordered case plan.
With regard to Mother's conduct since the prior adjudication of neglect, the court found as follows:
[Mother] did not complete the substance abuse treatment program at Black Mountain . . . . [She] has not been compliant with the directives of the Court. She is not engaged in substance abuse treatment. She has not completed the parenting class. She has not established housing. She has not completed a psychological evaluation. She has not maintained visitation with [Tina]. [Mother] was not incarcerated from December of 2014 through April 24, 2015. During said period, she did not maintain consistent contact with the Department nor avail herself of the recommended services. She has not had face to face contact since [Tina] came into care in October of 2014. . . .
. . .
From her release from Black Mountain through the Spring of 2015, [Mother] was homeless. In April of 2015, she reported residing in Havelock, North Carolina in a hotel with a friend. . . . [L]aw enforcement assisted her in moving from Havelock to New Bern, North Carolina. She has also utilized shelters as a resource. In September of 2015, [Mother] reported living in the Rescue Mission in downtown, Raleigh, North Carolina. She has reported to the Social Worker that she has independent housing at this time. . . . [Mother] was recently hospitalized at the Oaks Behavioral Hospital, and will need to comply with any recommendations in her discharge summary.We conclude that Mother's failure to address the issues of mental health, substance abuse, parenting skills, and housing instability supports the court's finding of a "high probability" of a repetition of neglect. See In re S.D.J., 192 N.C. App. 478, 485-87, 665 S.E.2d 818, 823-24 (2008) (citations omitted). Accordingly, we affirm the court's adjudication under N.C. Gen. Stat. § 7B-1111(a)(1). We need not address its second ground for terminating Mother's parental rights under N.C. Gen. Stat. § 7B-1111(a)(7).
Respondents do not challenge the trial court's determination under N.C. Gen. Stat. § 7B-1110(a) that terminating their parental rights is in Tina's best interest. Having upheld the court's adjudications as to each parent, we affirm the termination order.
AFFIRMED.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).