Opinion
No. COA16-154
08-16-2016
IN THE MATTER OF: T.R., R.R., S.R., and C.R.
Holcomb & Cabe, LLP, by Samantha Cabe, for Orange County Department of Social Services. Sydney Batch for Respondent-mother. J. Thomas Diepenbrock for Respondent-father. Ellis & Winters LLP, by Emily E. Erixson, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Orange County, Nos. 14 JT 47-50 Appeal by Respondents from orders entered 7 December 2015 by Judge Joseph Moody Buckner in Orange County District Court. Heard in the Court of Appeals 25 July 2016. Holcomb & Cabe, LLP, by Samantha Cabe, for Orange County Department of Social Services. Sydney Batch for Respondent-mother. J. Thomas Diepenbrock for Respondent-father. Ellis & Winters LLP, by Emily E. Erixson, for guardian ad litem. DAVIS, Judge.
T.R. ("Respondent-mother") and R.R. ("Respondent-father") (collectively "Respondents") appeal from orders terminating their parental rights to T.R. ("Timothy"), R.R. ("Robert"), S.R. ("Susan"), and C.R. ("Cathy") (collectively the "Children"). After careful review, we affirm in part and remand in part.
Pseudonyms and initials are used throughout the opinion to protect the identity of the juveniles and for ease of reading. N.C.R. App. P. 3.1(b).
Factual Background
Respondents, who married in 2004, are the biological parents of the Children. Timothy, Robert, and Susan are triplets who were born on 2 July 2003, and Cathy was born on 5 November 2010. Respondent-mother has a fifth child, born on 23 May 1994, who has reached the age of majority. Since the birth of Respondent-mother's first child in 1994, nine referrals have been made to the Orange County Department of Social Services ("DSS") concerning the family. All of the referrals were similar in nature and involved allegations of neglect, inappropriate discipline, and alcohol and drug use by Respondents.
On 25 March 2014, DSS received a referral regarding a "knot" on Timothy's head. The referral also alleged paranoid and erratic behavior by Respondent-mother, financial difficulties, and abuse by Respondent-mother against Timothy. In response to the referral, DSS undertook an investigation, which revealed Respondent-mother was, in DSS's judgment, using "inappropriate discipline" with the Children. DSS also learned that the Children had witnessed some "domestic discord" between Respondents and that the triplets took turns rotating between sleeping on the floor and sharing a single twin bed.
For example, DSS received information during the course of its investigation that Respondent-mother hit Timothy with a stick, causing minor injuries.
On 10 June 2014, DSS filed juvenile petitions alleging chronic and ongoing neglect and inappropriate discipline of the Children by Respondents. A child planning conference was held on that same day after which a consent order was entered determining that having the Children remain in Respondents' home was "not contrary to the child[ren's] welfare" at that time. In the consent order, Respondents also agreed to participate in intensive in-home services, submit to parental competency evaluations, and enroll the Children in daycare and camp as arranged through DSS.
Collectively, Respondents received $2,005.00 per month in Supplemental Security Income; a monthly food stamp allotment of $371.00; a housing voucher pursuant to Section 8 of the Housing Act of 1937, 42 U.S.C. § 1437f ("Section 8 voucher"); and roughly $1,000.00 per month in earnings from work performed by Respondent-father. Despite this income and financial assistance, Respondents and the Children were evicted from their home on 1 July 2014 for failure to pay rent. One week later, Respondents contacted DSS and stated they were out of money and in need of financial assistance. When asked about their financial situation, Respondent-mother could not account for roughly $1,400.00 of their spending and told DSS it was "none of the agency's business about her money." DSS provided assistance to Respondents in the form of hotel stays and gas cards and provided assistance with a rapid rehousing program.
The record reflects that Respondent-father's income was, at best, intermittent. While he was able to earn approximately $1,000.00 per month as of July 2014, he was not working, and thus unable to earn any income, as of November 2014.
On 8 July 2014, DSS received information that the Children were being sent to camp, which they were attending as agreed to in the 10 June 2014 consent order, without adequate sustenance. Some days the Children were being sent with no lunch, and on other days they were given an inadequate lunch such as a can of chicken, a can of tuna, or a jar of peanut butter to be shared among the Children. Due to these, and other, concerns for the safety and well-being of the Children, DSS applied for non-secure custody on 11 July 2014. That same day, the court found there was a "substantial risk of physical injury" to the Children and ordered each of the Children into the non-secure custody of DSS for placement in a foster home.
After the Children entered foster care, Respondents lived at the Durham Rescue Mission from 14 July 2014 through 3 September 2014. They then obtained a four-bedroom house with their Section 8 voucher on 3 September 2014. Respondent-mother was diagnosed with cocaine and opioid abuse on 22 October 2014 and failed to attend substance abuse treatment as recommended. Between August 2014 and May 2015, Respondent-mother completed twelve of twenty requested drug screens; seven of the twelve completed screens tested positive for cocaine. Respondent-mother was also charged with driving while impaired in September 2014. Respondent-mother participated in a substance abuse treatment program beginning in February 2015 but continued to test positive for cocaine as late as May 2015.
The record reflects that Respondent-father also struggled with drug abuse. DSS arranged for him to participate in a drug abuse treatment program in November 2014. While he attended a few of the meetings in the initial weeks of the program, he missed other meetings for weeks at a time and ultimately failed to follow through with treatment recommendations. Between August 2014 and May 2015, Respondent-father completed twelve of twenty requested drug screens. He tested positive for cocaine in August and November 2014 and provided a diluted screen in September 2014. In March 2015, he tested positive for marijuana, and a hair follicle screen in April 2015 indicated cocaine use.
Between November 2014 and February 2015, Respondents were offered weekly visits with the Children. Respondent-mother missed more than half of the visits, and Respondent-father missed half of the visits, citing transportation difficulties. During the supervised visits, Respondent-father exhibited minimal interaction with the Children for most of the visit and at times would leave the room, thereby leaving the Children unsupervised.
During this time frame, Respondent-mother underwent a psycho-educational evaluation performed by Dr. Barbara Hawk, who found that she is "significantly intellectually impaired," her limited cognitive function is "accompanied by impaired adaptive function," and her "deficits are in the exact areas so critical to meeting her children's needs." Respondent-father also underwent a parental evaluation performed by Dr. Katrina Kuzyszyn-Jones of KKJ Forensic and Psychological Services. Dr. Kuzyszyn-Jones reported that Respondent-father acknowledged he has a substance abuse problem with marijuana and crack cocaine. Testing of Respondent-father "also suggests he has borderline and antisocial personality traits that are often associated with trauma and drug use such as pervasive negative mood, irresponsibility, impulsivity, risky behavior, hostility and egocentrism."
On 21 May 2015, the trial court conducted a permanency planning hearing, and on 12 June 2015, the court filed a permanency planning order changing the permanent plan for all of the Children to adoption. Respondents filed notices to preserve their rights to appeal this order.
On 24 July 2015, DSS filed motions to terminate Respondents' parental rights pursuant to N.C. Gen. Stat. § 7B-1111 on the following grounds: (1) neglect; (2) willful placement in foster care for more than twelve months without showing reasonable progress in correcting the conditions which led to the removal of the Children; and (3) dependency.
A hearing on DSS' motions was held on 22 October 2015. On 7 December 2015, the trial court filed eight orders collectively finding the above-referenced termination grounds to exist as to each of the Children and determining that termination of Respondents' parental rights was in the Children's best interests. Among the findings contained in the trial court's orders terminating both Respondent-mother's and Respondent-father's parental rights to the Children were the following:
The trial court entered a total of eight orders, one for the termination of each parent's parental rights as to each of the Children. The quoted findings of fact appear in all of the trial court's eight orders.
7. There have been nine (9) referrals to DSS since 1994[.] . . . The referrals included allegations of physical abuse, improper discipline and additional issues of neglect.
8. The current [DSS] involvement with the family began with a referral in March 2014 when it alleged that [Timothy] ([Cathy's] brother) has a knot on his upper forehead that was suspicious for physical discipline. While services were being provided to the family, an additional referral was made of improper discipline. Finally in October 2014, a referral was made to [DSS] that alleged the parents were providing the [C]hildren with alcohol and cigarettes.
9. Even though the case was open for services, [DSS] decided to file a petition because the parents were making no progress on their case plan activities and the [C]hildren continued to be at risk. On July 1, 2014, the family was evicted from their home, even though they reported an income of about $2,000 disability income (SSI) and additional income from sporadic work Respondent father maintained.
10. After the family got evicted from their home in July 2014, [DSS] assisted the family with payment for a motel and a gas card. Also with the assistance of [DSS], the [C]hildren were enrolled in summer camps.
11. Before the [C]hildren were enrolled in summer camps, [Respondents] agreed that they would be able to provide the [C]hildren with daily lunches, a requirement of the camp the parents chose for the [C]hildren. However, when the [C]hildren started attending camp, they were sent with
either no lunch or with a lunch inappropriate for a child at camp. On one occasion, [the Children] took a can of tuna and a can of chicken for lunch. On another occasion, [the triplets] took a jar of peanut butter that they shared and ate with a spoon. On another occasion, each took a package of wieners and a honey bun for their lunch.
In addition, the trial court's orders terminating Respondent-mother's rights to each of the Children contained, inter alia, the following findings:
14. In October 2014, Respondent mother was diagnosed with cocaine abuse and opioid abuse. She did not attend Substance Abuse treatment as recommended by Freedom House Outpatient Center who completed the substance abuse assessment.
15. Between August 2014 and May 2015, Respondent mother completed twelve (12) of twenty (20) requested drug screens. Of the twelve (12) completed, seven (7) screens were positive for cocaine.
. . . .
19. From November 2014 through February 2015, Respondent mother was offered weekly visits with the [C]hildren. During that period, Respondent mother missed over half of the visits offered. Respondent mother cited various transportation problems as the reason why visits were missed. From May 2015 through October 2015, ten (10) visits were offered to the Respondent mother with the [C]hildren. She missed five (5) visits, was late to two (2) visits and left one visit early.
20. A Parenting Evaluation was ordered for both Respondent parents in order to determine whether new or additional services would benefit either parent.
21. Respondent mother agreed to complete and did complete a Parental Evaluation with Dr. Katrina
Kuzyszyn-Jones, of KKJ Forensic and Psychological Services.
22. Dr. Kuzyszyn-Jones found the following and the court so finds:
. . . .
b. Respondent mother['s] "general cognitive ability is within the extremely low range of intellectual functioning".
c. Respondent mother has a Cannabis Use Disorder, Mild and Opioid Use Disorder, Mild.
d. Respondent mother reported using Oxycodone, Ecstasy and Marijuana within thirty (30) days prior to her interview for the Parental Evaluation.
e. During an observed visit with the [C]hildren, Respondent mother was not engaged and appeared disinterested in the [C]hildren.
f. Respondent mother will not likely benefit from parenting class, given her cognitive limitations.
g. It is not likely that Respondent mother can properly care for the [C]hildren "without considerable support".
h. Respondent mother's cognitive problems are not curable and are the reasons for most of her parenting difficulties.
i. Respondent mother takes "pain" medication that she gets from a friend.
. . . .
25. Since the Permanency Planning hearing of May 2015, [DSS] has had little contact with Respondent mother.
All of the trial court's orders terminating Respondent-father's parental rights to each of the Children contained, inter alia, the following findings:
14. Respondent father had sporadic employment prior to the filing of the juvenile petition[;] however, as of this hearing neither parent is employed.
. . . .
17. Respondent father agreed to complete and did complete a Parental Evaluation with Dr. Katrina Kuzyszyn-Jones, of KKJ Forensic and Psychological Services.
18. Dr. Kuzyszyn-Jones found the following and the court so finds:
a. Respondent father told the evaluator that he knows his problem is "I do drugs".
. . . .
d. Respondent father reported "recent marijuana and cocaine use". He also admitted that he uses crack "whenever he can".
. . . .
f. Respondent father "meets the criteria for Stimulant Use Disorder (Cocaine), Mild".
g. Respondent father's "testing also suggests he has borderline and antisocial personality traits that are often associated with trauma and drug use such as pervasive negative mood, irresponsibility, impulsivity, risky behavior, hostility and egocentrism".
. . . .
20. Between August 2014 and May 2015, [DSS] requested Respondent father to take twenty (20) drug screens and he completed twelve (12). He tested positive for cocaine in August and November 2014. In September 2014, Respondent father's screen was diluted. In March 2015, Respondent father tested positive for marijuana. A hair follicle screen in April 2015 indicated cocaine use.
21. From July 2014 through May 2015, Respondent father was offered weekly visits with the [C]hildren. From November 2014 through February 2015, Respondent father missed half of the visits offered. Respondent father cited various transportation problems as the reason why visits were missed. From May 2015 through October 2015, there were a total of ten (10) visits offered with the [C]hildren. Respondent father missed four (4) visits and was late to two (2) visits.
Based upon these findings of fact, the trial court concluded, in part, that (1) each of the Children was neglected; (2) sufficient grounds existed to terminate Respondents' rights pursuant to N.C. Gen. Stat. § 7B-1111(1); and (3) each child "is impaired and at a substantial risk of impairment as a result of [Respondents'] neglect. It is likely that the neglect experienced by [each child] in the care of [Respondents] will repeat or continue if [each child] is returned to [Respondents'] care and custody." The trial court also concluded that each child's best interests were served by termination of Respondents' parental rights. From these eight orders, Respondents have appealed.
The trial court also concluded that other statutory grounds for termination of Respondents' parental rights existed as to each child. However, because we affirm each of the trial court's orders on the ground of neglect, we need not address the other grounds for termination.
Analysis
Termination of parental rights proceedings are conducted in two phases: (1) an adjudication phase governed by N.C. Gen. Stat. § 7B-1109; and (2) a disposition phase governed by N.C. Gen. Stat. § 7B-1110. In re D.R.B., 182 N.C. App. 733, 735, 643 S.E.2d 77, 79 (2007). During the adjudication phase, the trial court "examines the evidence and determines whether sufficient grounds exist under N.C. Gen. Stat. § 7B-1111 to warrant termination of parental rights." In re T.D.P., 164 N.C. App. 287, 288, 595 S.E.2d 735, 736 (2004), aff'd per curiam, 359 N.C. 405, 610 S.E.2d 199 (2005). The standard of review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact, in turn, support the court's conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). Findings of fact that are not specifically challenged on appeal are binding. In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404 (2005). The trial court's conclusions of law are reviewable de novo. In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
If the court determines that one or more grounds for terminating a parent's rights exist, it then proceeds to the disposition phase and makes a discretionary determination whether terminating the parent's rights is in the juvenile's best interests. N.C. Gen. Stat. § 7B-1110(a) (2015). On appeal, the trial court's best interests determination is reviewed under an abuse of discretion standard. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). "A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason." Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (citation and quotation marks omitted).
I. Adjudication Phase
We first address the court's determination that statutory grounds exist to terminate Respondents' parental rights. Pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), a trial court may terminate parental rights if the parent has "neglected the juvenile." N.C. Gen. Stat. § 7B-1111(a)(1) (2015). Chapter 7B of the General Statutes defines a "[n]eglected juvenile," in relevant part, 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) (2015).
"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). The court must consider evidence of any changed circumstances since the time of a prior adjudication and the probability that the neglect will be repeated if the child is returned to the parent's care. In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). In predicting the probability of repetition of neglect, the 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).
Both Respondent-mother and Respondent-father contend that the trial court's findings of fact do not support its legal conclusion that the Children were neglected and that it is likely the neglect will be repeated or continued if the Children are returned to Respondents' care and custody. We disagree.
We first note that Respondent-mother does not specifically challenge any of the findings of fact made in the trial court's orders terminating her parental rights; therefore, those findings of fact are binding on appeal. See P.M., 169 N.C. App. at 424, 610 S.E.2d at 404. Respondent-father only specifically challenges finding of fact 15, which states that "Respondent[-]father and the [C]hildren admit to incidents of domestic violence in the home between [Respondents]." Assuming, without deciding, that finding of fact 15 is unsupported by clear, cogent, and convincing evidence — as Respondent-father argues — the trial court's other findings of fact provide ample support for the trial court's conclusion that the Children were neglected by Respondents.
Respondent-father argues that findings of fact 32-35 are more accurately labeled as conclusions of law. However, even disregarding these findings of fact and relying solely on the unchallenged findings quoted above, we still find ample support for the trial court's conclusion of law that each child was neglected. See In re B.W., 190 N.C. App. 328, 335, 665 S.E.2d 462, 467 (2008) ("If a contested 'finding' is more accurately characterized as a conclusion of law, we simply apply the appropriate standard of review and determine whether the remaining facts found by the court support the conclusion.").
The unchallenged findings show that Respondents have had a long history of DSS involvement dating back to the birth of Respondent-mother's first child in 1994. Multiple referrals have alleged physical abuse, improper discipline, improper supervision, inadequate sustenance, and inadequate housing. Respondents have persistent substance abuse issues, and they continue to test positive for cocaine and marijuana use despite participation in substance abuse treatment programs provided through DSS. Although the family income exceeded $2,000.00 per month, Respondents were unable to provide adequate food and shelter for the Children. At the time of the termination hearing, neither parent was employed.
After the Children were placed in foster care, Respondents missed approximately half of the available visits with the Children through the date of the termination hearing. As the trial court found, Respondent-mother is not likely to benefit from parenting classes and is not likely to be able to care for the Children properly without considerable support from others due to her cognitive limitations. During visits, Respondent-mother did not engage with the Children.
The trial court also found as fact that Respondent-father suffers from "borderline and antisocial personality traits" that contribute to a "pervasive negative mood, irresponsibility, impulsivity, risky behavior, hostility and egocentrism." Respondent-father also admitted to using crack cocaine "whenever he can" and often left the visitation room during supervised visits with the Children, failing to recognize the need to supervise and engage with the Children.
The findings of fact evidence a long history of Respondents' inability to provide for the proper care, supervision and discipline of the Children, continuing through the date of the termination hearing. In addition, following the removal of the Children from their custody, Respondents have not successfully completed parenting classes or substance abuse programs designed to help them overcome the issues that have contributed to their neglect of the Children. Accordingly, we affirm the trial court's adjudication of the Children as neglected pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).
"A valid finding of one statutorily enumerated ground is sufficient to support an order terminating parental rights." In re Stewart Children, 82 N.C. App. 651, 655, 347 S.E.2d 495, 498 (1986). Thus, we need not, and do not, consider Respondents' arguments concerning the trial court's remaining grounds for termination. In re P.L.P., 173 N.C. App. 1, 9, 618 S.E.2d 241, 246 (2005), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006).
II. Disposition Phase
Respondents next contend that the trial court abused its discretion in determining that termination of their parental rights is in the best interests of the Children. They argue that the court failed to make findings of fact regarding all of the relevant factors listed in N.C. Gen. Stat. § 7B-1110(a) in determining whether termination of parental rights is in the juveniles' best interests. Specifically, Respondents argue the trial court was required to make a finding of fact regarding the Children's likelihood of adoption. We agree.
N.C. Gen. Stat. § 7B-1110(a) provides, in pertinent part, as follows:
After an adjudication that one or more grounds for terminating a parent's rights exist, the court shall determine whether terminating the parent's rights is in the juvenile's best interest. The court may consider any evidence . . . that the court finds to be relevant, reliable, and necessary to determine the best interests of the juvenile. In each case, the court shall consider the following criteria and make written findings regarding the following that are relevant:
(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
N.C. Gen. Stat. § 7B-1110(a).placement.
(6) Any relevant consideration.
This Court has previously held that the trial court must consider all of the factors listed in N.C. Gen. Stat. § 7B-1110(a) and that a failure to do so "would constitute an abuse of discretion." In re D.H., ___ N.C. App. ___, ___, 753 S.E.2d 732, 735 (2014). However, while the court must consider each of the listed factors, "the court must enter written findings in its order concerning only those factors that are relevant." Id. (citation and quotation marks omitted and emphasis added). As we have held, a factor is "relevant" if "there is conflicting evidence concerning the factor, such that it is placed in issue by virtue of the evidence presented before the trial court." In re H.D., ___ N.C. App. ___, ___, 768 S.E.2d 860, 866 (2015) (citation, quotation marks, and brackets omitted).
We agree with Respondents that the trial court erred by failing to make findings regarding the likelihood of adoption of the four children. They cite evidence in the record tending to show that the Children have significant developmental delays, cognitive impairments, and behavioral issues that make it unlikely for them to be adopted. In response, DSS and the Children's guardian ad litem direct our attention to evidence tending to show that the Children's foster parents desire to adopt them. We believe this conflicting evidence made the Children's likelihood of adoption a relevant issue, thereby necessitating a finding by the trial court regarding the likelihood of their adoption. It is therefore necessary to remand this matter to the trial court for appropriate findings addressing this issue. See In re J.L.H., 224 N.C. App. 52, 59-60, 741 S.E.2d 333, 338 (2012).
Conclusion
For the reasons stated above, we affirm the adjudication portions of the trial court's orders. However, we remand the disposition portions of the orders for further findings of fact.
AFFIRMED IN PART; REMANDED IN PART.
Judges STEPHENS and DIETZ concur.
Report per Rule 30(e).