Opinion
No. COA10-947
Filed 1 February 2011 This case not for publication
Appeal by Respondent-father from order entered 14 April 2010 by Judge Richlyn D. Holt in Jackson County District Court. Heard in the Court of Appeals 11 January 2011.
Mary G. Holliday for Petitioner Jackson County Department of Social Services. Teague Campbell Dennis Gorham, L.L.P., by Robert C. Kerner, Jr., for Guardian ad Litem. Robert W. Ewing for Respondent-father.
Jackson County Nos. 09 JT 50-52.
I. Procedural History and Factual Background
Respondent-father and Respondent-mother (collectively "Respondents") are the parents of daughter F.L.B. ("Frances"), born in 1998, son H.S.B. ("Harold"), born in 1999, and daughter D.M.M.B. ("Danielle"), born in 2000 (collectively, "the children"). The Jackson County Department of Social Services ("DSS") began working with Respondents on 27 September 2005, after receiving a report alleging sexual abuse and neglect of the children. On 8 June 2007, DSS filed juvenile petitions alleging the children were abused and neglected. DSS initially placed the children with relatives, but later placed the children in foster care when the relatives were unable to care for the children. Respondents were each criminally charged with first degree sexual offense with a child and indecent liberties with a child.
"Frances," "Harold," and "Danielle" are pseudonyms to protect the children's privacy.
DSS filed amended juvenile petitions on 30 January 2008 alleging that Frances and Danielle were abused and neglected, and that Harold was neglected. DSS alleged that Respondent-father had raped and committed sexual offenses against Frances and Danielle. DSS further alleged that Respondent's home was unsanitary due to dog feces, rat feces, and rat nests inside the home.
On 11 February 2009, the trial court held a hearing on the amended petitions. By order entered 3 March 2009, the trial court adjudicated Frances and Danielle abused and all three children neglected. On 20 May 2009, the trial court entered a disposition and permanency planning order continuing custody of the children with DSS, denying Respondents visitation with the children, and ordering the permanent plan for the children be adoption. The trial court also relieved DSS of reunification efforts and ordered DSS to file petitions seeking termination of Respondents' parental rights.
This Court affirmed the trial court's adjudication and disposition orders in the unpublished opinion In re D.B., H.B., and F.B., 2010 N.C. App. LEXIS 413, COA09-1033 (March 2, 2010).
On 10 June 2009, DSS filed petitions to terminate Respondents' parental rights. The petitions alleged that grounds existed to terminate Respondent-father's parental rights to Frances and Danielle for abuse under N.C. Gen. Stat. § 7B-1111(a)(1), to all three children for neglect under N.C. Gen. Stat. § 7B-1111(a)(1), and to all three children for failure to make reasonable progress under N.C. Gen. Stat. § 7B-1111(a)(2). In July 2009, Respondent-father was convicted of rape of a child less than 13 years of age and indecent liberties with a child, and was sentenced to 253 to 306 months imprisonment.
The trial court held a hearing on the termination petitions in March 2010. The trial court concluded that grounds existed to terminate Respondents' parental rights under N.C. Gen. Stat. § 7B-1111(a)(1) and (a)(2). The trial court further concluded that it was in the best interests of the children to terminate Respondents' parental rights. From the trial court's order, Respondent-father appeals.
II. Discussion
On appeal, Respondent-father ("Respondent") contends that the trial court's conclusions of law are not sufficient to support terminating his parental rights for abuse under N.C. Gen. Stat. § 7B-1111(a)(1) or for failure to make reasonable progress under N.C. Gen. Stat. § 7B-1111(a)(2), and that the trial court's conclusion that grounds existed to terminate his parental rights for neglect under N.C. Gen. Stat. § 7B-1111(a)(1) was not supported by the findings of fact. For the reasons stated below, we affirm the order of the trial court.
A. Standard of Review
A termination of parental rights proceeding involves a two-stage process. In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001) (citation omitted). The initial stage is the adjudicatory stage whereby the petitioner must establish by clear, cogent, and convincing evidence that at least one of the statutory grounds for termination listed in N.C. Gen. Stat. § 7B-1111 exists. N.C. Gen. Stat. § 7B-1109 (2007); In re Anderson, 151 N.C. App. 94, 564 S.E.2d 599 (2002) (citation omitted). A finding of any one of the grounds enumerated in N.C. Gen. Stat. § 7B-1111 will support a trial court's order of termination. A Child's Hope, LLC v. Doe, 178 N.C. App. 96, 630 S.E.2d 673 (2006). Appellate review of a trial court's determination at the adjudicatory stage is whether the trial court's findings of fact are based upon clear, cogent, and convincing evidence and whether the findings support the conclusions of law. In re Pope, 144 N.C. App. 32, 547 S.E.2d 153, aff'd, 354 N.C. 359, 554 S.E.2d 644 (2001). "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." Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
"If the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child." Anderson, 151 N.C. App. at 98, 564 S.E.2d at 602 (citation omitted). A trial court's determination at the dispositional stage is reviewed on appeal for abuse of discretion. Id. at 98, 564 S.E.2d at 602.
B. Grounds for Termination
We first address Respondent's argument that the trial court's conclusion that grounds existed to terminate his parental rights for neglect under N.C. Gen. Stat. § 7B-1111(a)(1) was not supported by the findings of fact.
Parental rights may be terminated if the juvenile has been neglected. N.C. Gen. Stat. § 7B-1111(a)(1) (2007). A neglected juvenile is one "who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker . . . or who lives in an environment injurious to the juvenile's welfare[.]" N.C. Gen. Stat. § 7B-101(15) (2007). A determination of neglect must be based on evidence showing neglect at the time of the termination proceeding. In re Young, 346 N.C. 244, 485 S.E.2d 612 (1997). When a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the requisite finding of neglect at the time of the termination proceeding may be based upon a showing of a "history of neglect by the parent and the probability of a repetition of neglect." In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003). "`[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.'" In re J.G.B., 177 N.C. App. 375, 382, 628 S.E.2d 450, 455 (2006) (quoting In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984)). "Where evidence of prior neglect is considered, a trial court must also consider evidence of changed circumstances and the probability of a repetition of neglect." Id. at 382, 628 S.E.2d at 455.
In its order terminating Respondent's parental rights, the trial court made numerous findings of fact in support of its determination that the children were neglected, including:
11. That the Juveniles have been in the legal custody of the Jackson County Department of Social Services continuously since June 8, 2007, when a [nonsecure] custody order was entered as to each Juvenile.
12. That during the summer after [Frances] repeated the second grade, her father, the Respondent [] dragged her by her hands to the bedroom which he shared with the Respondent Mother. He put her on the bed, removed his clothes and all of her clothes, and put what she calls his "worm" in her private parts. Her private parts hurt badly. She was crying. The Respondent Mother [] was present in the doorway of the bedroom, and saw this happen. [Frances] was crying and told her father to stop. Her younger sister, [Danielle], was on the floor of the bedroom, when this happened to [Frances].
13. That when the Respondent Father was finished with [Frances], he put [Danielle] on the bed, removed her clothes and did the same thing to her that he had just done to [Frances]. [Danielle] was crying and saying "Stop." The Respondent Mother was in the room when this happened and did nothing to intervene or stop what was going on. When this was over, [Frances] grabbed her clothes and her sister's clothes. They got dressed and went to their aunt's house.
14. That [Frances] in the past had touched her father's private parts and had kissed her mother's "boobies" and had touched her father's "worm[.]"
15. That on September 27, 2005, when Jackson County Sheriff's Department Detective Celeste Holleman was at the home of the Respondent Parents she observed food everywhere in the house. The food was opened and some partially eaten. Some food had mold on it. The interior of the house smelled like dog feces and urine. There were dog feces and urine on the furniture. There were dog and rat feces on the floor of every room, including the Parents' bedroom, to the extent that you had to be careful where you stepped. There were also rat feces and dirty clothes in the home. The dirty clothes were everywhere.
16. That the Department, without input from either the Respondent Mother or Father, developed a Family Services Case Plan which included the following terms and conditions:
A. [Respondents] will participate in Intensive Family Reunification Services to address appropriate interactions with children, maintain clean and sanitary house (after children are placed back in the home) and appropriate discipline.
B. [Respondents] will follow the current safety assessment which indicates there is to be no contact with the children.
C. [Respondents] will notify Jackson County Department of Social [S]ervices of any changes in contact information within 72 hours.
D. [Respondents] will complete a sex offender assessment and follow any and all recommendations from this assessment.
E. [Respondents] will show no display of sexual activities/behaviors in the presence of the children.
F. [Respondents] will participate in a Capacity to Parent Evaluation and follow any and all recommendations from this assessment.
G. [Respondents] will participate in a Child and family Team Meeting as requested.
H. [Respondents] will provide and maintain housing suitable to the size of the family and the children's needs. It would be in the best interest of the children to have separate sleeping areas provided for each child due to the children's history of acting out sexually.
I. [Respondents] will provide and maintain housing that is structurally sound and safe for children.
J. [Respondents] will maintain the cleanliness of the home at least to a minimal standard as to not jeopardize the children's safety or health:
i. Eliminate excessive amount of garbage/trash inside and outside of the home.
ii. Properly dispose of animal/human waste.
iii. Address any issues of infestation of vermin.
iv. Remove any objects that may be a potential safety risk to the children (i.e. items with broken or sharp edges, hazardous chemicals, etc).
17. That the Respondent Parents never signed the case plan described above and have not participated in meeting its objectives.
18. That the Respondent Parents could not participate in some of the terms of the case plan, such as Intensive Family Reunification Services, until the Juveniles were placed back in their home.
19. That Respondent Parents have not been in a position to show or display sexual activities and behaviors in the presence of the Juveniles, since the Juveniles came into the Department's legal custody on June 8, 2007. Also, as a result of the Parents' bond conditions, they were not allowed to have contact with the Juveniles and were not in a position to show these behaviors.
20. That the Respondent Parents did ameliorate to some extent the garbage and trash which was on the outside area of their home.
21. That other than those activities, the Respondent Parents have not been involved in the elements of their case plan which required action on their part.
. . . .
34. That on July 24, 2009 the Department sent to [Respondent-father] in [C]entral [P]rison an invitation to the PPAT team meeting on August 13, 2009. The Department further indicated to him that they knew he would not be able to attend because of his imprisonment. The Department encouraged him to send a letter expressing his opinion about the permanent plan. The Department received no response.
Permanency Planning Action Team.
35. That on February 5, 2010 the Department sent a letter to [Respondent] at Marion Correctional Facility regarding a February 19, 2010 PPAT meeting. They received no input from him regarding this meeting.
. . . .
40. That on July 17, 2009 the Respondent Father [] was convicted of Rape of a Child Less than 13 Years of Age and Indecent liberties with a Child. He received a sentence of not less than 240 months and not more than 290 months on the rape charge and a sentence of not less than 13 months and not more than 16 months on the indecent liberties charge. These are consecutive sentences, representing a combined sentence of not less than 253 months and not more than 306 months (or not less than 21.08 years and not more than 25.5 years). [Respondent-father] has appealed these convictions and that appeal is pending.
41. That since he has been in the prison system, the Department has not received any contact from him and has not received any contact from the prison social worker who might be working with him.
. . . .
43. That the Department has indicated to the Parents that the Department desires for them to have a Sex Offender Risk Assessment. This has been communicated to them in writing at least three times and in person at least twice. Neither parent has obtained a Sex Offender Risk Assessment. The Department offered to pay for these assessments and to assist the parents with transportation to the assessments.
44. That the [R]espondent Father has been subject to bond restrictions related to his criminal charges which prevented him from seeing his children.
. . . .
46. That the restrictions that have been placed on the Mother and Father with respect to contact with the children, have also prevented them from sending any direct letters or cards to their children. They have not done so. In addition, they have not sent anything to the Department for the Department to inspect and consider giving to the children at a later time.
. . . .
52. That neither the Mother nor the Father has called, written or inquired of the Department about the welfare of their children or the children's diagnoses. They have provided no Christmas or birthday gifts for the Juveniles during the time the Juveniles have been in the Department's custody.
53. That with respect to the progress of the Parents in meeting the terms and objectives of their family service case plan, listed in Finding of Fact 16 above, the parents have not met any of the terms, with the exception of [Respondent-mother] attending one PPAT meeting and the Parents removing some of the trash from outside the residence[]. The Parents have not submitted themselves for the Capacity to Parent Evaluation or the Sex Offender Risk Assessment. [Respondent-mother] did not keep the Department informed of her change of residence, when she moved in with her grandmother, and she refused to provide the Department with her current telephone number. The Parents no longer have housing that is suitable for the Juveniles.
As Respondent did not challenge any of the trial court's findings of fact, these findings are binding on appeal. State v. Baker, 312 N.C. 34, 320 S.E.2d 670 (1984). Nonetheless, there is clear, cogent, and convincing evidence to support the trial court's findings of fact. The children were taken into DSS custody on 8 June 2007 as a result of their alleged neglect, and the children were subsequently adjudicated neglected. Respondent raped Frances and Danielle in the family home, in the presence of the children's mother. Respondent refused to submit to a Sex Offender Risk Assessment or a Capacity to Parent Evaluation and failed to meet the terms and objectives set forth for him in the case plan created by DSS. Moreover, Respondent never inquired of DSS about the children's well-being nor sent any cards or presents to DSS to give to the children.
Frances and Danielle were also alleged to be abused and were subsequently adjudicated abused.
These findings of fact evidence Respondent's total lack of interest in the children's welfare and clearly show that the children did not receive proper care, supervision, or discipline from Respondent in the past and lived in an environment injurious to their welfare, see N.C. Gen. Stat. § 7B-101(15), and that there is a substantial likelihood that these circumstances would continue in the future. See Shermer, 156 N.C. App. at 286, 576 S.E.2d at
407.
Respondent argues that "[i]t would be improper for this Court to consider the findings of abuse in the termination order when analyzing th[e] neglect issue[.]" This argument borders on the absurd. It cannot be rationally denied that Respondent's raping and taking indecent liberties with his two daughters in the family home creates "an environment injurious to the [children's] welfare" and evidences Respondent's "[im]proper care, supervision, or discipline" of the children. N.C. Gen. Stat. § 7B-101(15). Moreover, Respondent's failure to address any of the issues regarding his mistreatment of the children and the injurious environment created by his actions is ample proof that Respondent would likely neglect the children in the future.
We thus conclude that the findings fully support the trial court's conclusion that Respondent
neglected all three Juveniles . . . under [N.C. Gen. Stat. § ] 7B-1111(a)(1) and 7B-101(15) and that such neglect continues through the hearing of the Petition herein and there is the probability of the repetition of neglect in the future, specifically as a result of the inactivity of [Respondent] with respect to any action related to the welfare of the children[.]
In light of our conclusion, we need not address Respondent's arguments regarding the remaining grounds for termination. See A Child's Hope, LLC, 178 N.C. App. 96, 630 S.E.2d 673 (a finding of any one of the grounds enumerated in N.C. Gen. Stat. § 7B-1111 will support a trial court's order of termination).
The order of the trial court is
AFFIRMED.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).