Opinion
NO. COA12-615
12-18-2012
IN THE MATTER OF: T.W.B., Jr.
No brief, for petitioner-appellee Rockingham County Department of Social Services. M. Carridy Bender, for guardian ad litem. Staples Hughes, Appellate Defendant, by J. Lee Gilliam, Assistant Appellate Defender, for respondent-appellant mother. W. Michael Spivey, for respondent-appellant father.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Rockingham County
No. 10 JT 81
Appeal by respondents from orders entered 5 May 2011 and 1 March 2012 by Judge James A. Grogan in Rockingham County District Court. Heard in the Court of Appeals 3 December 2012.
No brief, for petitioner-appellee Rockingham County
Department of Social Services.
M. Carridy Bender, for guardian ad litem.
Staples Hughes, Appellate Defendant, by J. Lee Gilliam,
Assistant Appellate Defender, for respondent-appellant
mother.
W. Michael Spivey, for respondent-appellant father.
MARTIN, Chief Judge.
Respondents are the biological parents of the minor child T.W.B., Jr. ("Thomas"). Thomas has Down syndrome, a hearing impairment, and other health issues. Rockingham County Department of Social Services ("RCDSS") became involved with the family in April 2010 when Thomas was three years old. On 15 April 2010, RCDSS received a report alleging that the family's home and Thomas were often dirty, that mother drank while caring for Thomas and sometimes left him unattended, and that mother did not provide basic necessities for Thomas. Father was incarcerated in Virginia. When a RCDSS social worker visited the home, the home was found to be in disarray. There were piles of clothing and other items on the furniture and floor, dirty dishes and old food in the kitchen, and dog food on the floors; the litter box was overflowing; and the home smelled of animal urine. Thomas was dirty and partially dressed. Based upon the home's condition and Thomas's age and special needs, RCDSS began offering in-home services.
The in-home services social worker began visiting the home on 30 April 2010, and found the home to be in substantially the same condition as observed by the prior social worker. On 7 May 2010, the social worker returned to the home; the home and Thomas were again dirty. Mother became upset when the social worker discussed the need to clean the house and obtain services for Thomas. Thomas went to spend the weekend with a relative due to mother's emotional state. Later that night, mother was involuntarily committed after threatening to commit suicide. On 10 May 2010, RCDSS filed a juvenile petition alleging Thomas was neglected and dependent. Thomas was adjudicated neglected and dependent in a hearing held on 17 June 2010.
The trial court conducted a review and permanency planning hearing on 24 March 2011. The trial court ceased reunification efforts and changed the permanent plan to adoption. On 7 July 2011, RCDSS filed a motion in the cause to terminate respondents' parental rights based on neglect and willfully leaving the child in foster care for more than twelve months without showing reasonable progress in correcting the conditions which led to the child's removal. RCDSS also alleged grounds existed to terminate mother's parental rights on the basis of dependency.
The trial court conducted a hearing on the motion seeking termination of respondents' parental rights on 17 November and 15 December 2011. The trial court found grounds existed to terminate mother's parental rights based upon neglect and willfully leaving the child in foster care without showing reasonable progress. The trial court also found grounds existed to terminate father's parental rights based upon neglect. The trial court concluded that termination of respondents' parental rights was in Thomas's best interest, and entered its order terminating respondents' parental rights on 1 March 2012.
Although respondents each filed notice of appeal from both the permanency planning order ceasing reunification efforts and from the order terminating parental rights, which may be combined pursuant to N.C.G.S. § 7B-1001(a)(5), respondents admittedly failed to "give notice to preserve the right to appeal the order ceasing reunification efforts" as required in N.C.G.S. § 7B-507(c). Furthermore, mother has failed to make any argument challenging the order ceasing reunification efforts. Therefore, father has filed a petition for writ of certiorari seeking review of the order. Rule 21 of the North Carolina Rules of Appellate Procedure provides that a "writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]" N.C.R. App. P. 21(a)(1). We conclude it is appropriate to exercise our discretion and allow father's petition for writ of certiorari to review the order ceasing reunification efforts.
Father argues the trial court erred in ceasing reunification efforts because its finding of fact that reunification efforts would be clearly futile and contrary to Thomas's health, safety, best interests, and need for a safe and permanent home within a reasonable period of time is not supported by the evidence. We disagree.
At review and permanency planning hearings, "[t]he court may consider any evidence, including hearsay evidence as defined in [N.C.]G.S. [§] 8C-1, Rule 801, 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(c), 7B-907(b) (2011). "This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court's conclusions, and whether the trial court abused its discretion with respect to disposition." In re C.M., 183 N.C. App. 207, 213, 644 S.E.2d 588, 594 (2007). "'An abuse of discretion occurs when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision.'" In re N.G., 186 N.C. App. 1, 10-11, 650 S.E.2d 45, 51 (2007) (quoting In re Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002)), aff'd per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008).
In this case, evidence presented included RCDSS's court report, the guardian ad litem's court report, and testimony from the RCDSS social worker. The trial court found that father remained incarcerated in the Virginia Department of Correction and that his projected release date was 2 March 2012, one year from the date of the hearing. The trial court also found that father was not engaged in all the services he claimed to be involved in while in prison. The social worker tried to verify father's enrollment and was told by father's case manager that most of the classes he claimed he was enrolled in were actually "pending enrollment." Additionally, the trial court found that father was not able to engage in services during two periods in 2010 because he was in solitary confinement for fighting or threatening people. The trial court further found that mother's home, based on testimony and photographs admitted into evidence, showed conditions worse than when Thomas was removed from the home. We conclude the trial court's findings support the determination that reunification efforts would be futile and contrary to Thomas's health, safety, best interests, and need for a safe and permanent home within a reasonable period of time.
Respondents also challenge the trial court's conclusion that grounds exist to terminate their parental rights for neglect. Mother contends the trial court erred in terminating her parental rights for neglect because she had addressed the issues raised in her case plan and father would be returning home from prison in the near future. Father contends the evidence and findings do not support a conclusion that it is likely he will neglect Thomas in the future.
In reviewing an order terminating parental rights, we examine the findings of fact to determine whether they are supported by "clear, cogent and convincing evidence" and whether the conclusions of law are supported by the findings of fact. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000) (citation and internal quotation marks omitted), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). "Where termination of parental rights is sought upon allegations of neglect, the court may consider evidence of neglect occurring before custody has been taken from the parents, but termination may not be based solely on conditions of neglect which may have previously existed, but no longer exist." In re White, 81 N.C. App. 82, 90, 344 S.E.2d 36, 41, disc. review denied, 318 N.C. 283, 347 S.E.2d 470 (1986). "The court must also consider evidence of any change in condition up to the time of the hearing, but this evidence is to be considered in light of the evidence of prior neglect and the probability of repetition of neglect." Id.
In this case, the trial court made findings of fact which acknowledged that respondents had a history of neglect prior to moving to Rockingham County. While they lived in Currituck County, Children's Developmental Services Agency ("CDSA") got involved with the family after receiving reports that the family home had no electricity, that Thomas was not receiving necessary services and medical care related to his special needs, and that Thomas was not using his hearing aide. The trial court also found that neither parent had obtained Medicaid for Thomas upon moving to Rockingham County, and that within weeks of the move and father's incarceration, the home was in "extreme disarray and was unhygienic." The trial court further found that father thought mother was providing Thomas with adequate care. Thus, the trial court found
29. There is a high likelihood of repeated neglect if the child were returned to either parent's or to both parents' care and custody, for the reasons set out above. The
mother's inability to maintain progress in several important aspects, both parents' feeling that they had been providing adequate care for the child, and the father's lack of understanding of the child's disabilities would all make it unlikely that the parents would provide adequate care for the child in the future.
Evidence supporting the probability of future neglect includes a showing that Thomas did not receive appropriate care even when father was in the home. Father was in the home when Currituck County DSS became involved with the family. Thomas was at the level of a ten-month-old in developmental milestones when he came into RCDSS custody. In spite of this, respondents believed they had provided Thomas with adequate care. At the time of the termination hearing, Thomas had progressed to the correct developmental stage for a child with Down syndrome. The evidence also tended to show father did not fully understand Thomas's diagnoses. Father believed Thomas was autistic, even though Thomas was never diagnosed with autism. Based on the foregoing, we conclude the trial court's findings of fact are supported by the evidence. Furthermore, based on the evidence, we conclude the trial court did not err in finding that there was a likelihood of future neglect if Thomas was returned to respondents' care and custody. Accordingly, we hold the trial court did not err in terminating respondents' parental rights for neglect.
Having concluded that the trial court properly found neglect as a ground to terminate mother's parental rights, we do not address mother's arguments concerning the remaining ground found by the trial court. In re Clark, 159 N.C. App. 75, 84, 582 S.E.2d 657, 663 (2003). The trial court's orders are affirmed.
Affirmed.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).