In re C.E.C.B. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA14-164
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
IN THE MATTER OF:
C.E.C.B., S.M.B., E.M.G.B. New Hanover County
Nos. 10 JT 159-161
Appeal by respondents from order entered 21 November 2013
by Judge J.H. Corpening, II in New Hanover County District
Court. Heard in the Court of Appeals 28 July 2014.
Regina Floyd-Davis for petitioner-appellee New Hanover
County Department of Social Services.
Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for
guardian ad litem.
Hunt Law Group, P.C., by James A. Hunt, for respondent-
appellant mother.
Mark L. Hayes for respondent-appellant father.
HUNTER, Robert C., Judge.
Respondent-mother and respondent-father (“respondents”)
appeal from an order terminating their parental rights to their
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children, Cathy, Sally, and Emily.1 After careful review, we
affirm.
Background
On 24 May 2010, the New Hanover Department of Social
Services (“DSS”) filed a juvenile petition alleging that Cathy,
age 7, Sally, age 2, and infant Emily (collectively “the
children”) were neglected and dependent. DSS also alleged that
fourteen-year-old “Amy,” respondent-mother’s biological daughter
and respondent-father’s adopted daughter, was neglected and
dependent.2 By order filed 16 August 2010, the trial court
adjudicated the children neglected based upon the parties’
stipulation that respondents engaged in domestic violence.
In a November 2011 permanency planning review order, the
trial court found that respondents had complied with their
Family Services Agreement and returned the children to the legal
custody of respondents. The trial court ordered respondents,
who had separated, to continue to comply with prior court orders
and to maintain appropriate housing and employment. Afterwards,
the children mostly lived with respondent-father.
1
Pseudonyms are used throughout this opinion to protect the
identity of the children and for ease of reading.
2
Amy is not a subject of this appeal because she reached the
age of majority prior to the filing of the petition to terminate
parental rights.
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DSS filed a new petition on 12 March 2012 alleging that the
children and Amy were neglected and dependent. By order filed
11 June 2012, the trial court adjudicated the children neglected
and dependent based, in part, upon respondents’ stipulation that
respondent-mother allowed the children to be exposed to Mr. C.,
“with whom she is engaged in a domestic violence ridden
relationship” and that respondent-father’s home was not an
“appropriate living arrangement due to [its] deplorable state.”
The trial court ceased reunification efforts with respondent-
mother on 21 September 2012 based, in part, upon her continued
relationship with Mr. C. in direct violation of a prior court
order. The trial court ceased reunification efforts with
respondent-father on 17 June 2013 after finding he “only
recently obtained housing” that “appear[ed] to be appropriate
for the children[.]”
DSS filed a petition to terminate respondents’ parental
rights on 19 July 2013. DSS alleged that the parental rights of
respondents were subject to termination pursuant to N.C. Gen.
Stat. § 7B-1111(a)(1) (neglect) and N.C. Gen. Stat. § 7B-
1111(a)(2) (failure to make reasonable progress). The
termination of parental rights hearing began on 18 September
2013, after which the trial court found that both grounds
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existed to terminate respondents’ parental rights. The court
also determined that termination of respondents’ parental rights
was in the best interest of the children and entered an order
terminating respondents’ rights. Respondents separately appeal.
Standard of Review
“The standard of review in termination of parental rights
cases is whether the findings of fact are supported by clear,
cogent and convincing evidence and whether these findings, in
turn, support the conclusions of law. We then consider, based
on the grounds found for termination, whether the trial court
abused its discretion in finding termination to be in the best
interest of the child.” In re Shepard, 162 N.C. App. 215, 221-
22, 591 S.E.2d 1, 6 (internal citation and quotation marks
omitted).
Arguments
I. Grounds for Termination
Respondents first contend the trial court erred in
concluding that grounds existed to terminate their parental
rights under N.C. Gen. Stat. § 7B-1111(a)(1). We disagree.
A trial court may terminate parental rights based on a
finding that the parent has neglected the juvenile. N.C. Gen.
Stat. § 7B-1111(a)(1) (2013). A neglected juvenile is one who
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“does not receive proper care, supervision, or discipline” from
a parent or caretaker, or “who lives in an environment injurious
to the juvenile’s welfare[.]” N.C. Gen. Stat. § 7B-101(15)
(2013). Generally, “[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). However,
“a prior adjudication of neglect may be admitted and considered
by the trial court in ruling upon a later petition to terminate
parental rights on the ground of neglect.” In re Ballard, 311
N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). Where a prior
adjudication of neglect is considered by the trial court, “[t]he
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.” Id. at 715, 319 S.E.2d
at 232. Thus, where
there is no evidence of neglect at the time
of the termination proceeding . . . parental
rights may nonetheless be terminated if
there is a showing of a past adjudication of
neglect and the trial court finds by clear
and convincing evidence a probability of
repetition of neglect if the juvenile were
returned to her parents.
In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).
Respondents argue that the trial court’s conclusion that neglect
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is likely to be repeated is not supported by its findings of
fact.
The trial court made the following relevant findings in
support of its conclusion of law that grounds existed to
terminate respondents’ parental rights based on neglect:
5. That family living environment, while
residing in [] Nevada, was marred with
substance abuse by [respondent-father] and
domestic violence between [respondents].
[Amy] testified that the family had
involvement with the Washoe County
Department of Social Services in [] Nevada.
[Amy] described their living environment as
marred with domestic violence, drug use,
chaotic and fraught with financial problems.
In, [sic] 1999, [respondent-father] was
incarcerated for three years for possession
of illegal substances. [Respondent-father]
acknowledges the involvement of the Washoe
County Department of Social Services on only
one occasion.
6. That the domestic violence continued
when the parties moved to [] North Carolina.
On May 22, 2010, [DSS] assumed legal custody
of [Amy, Cathy, Sally, and Emily] due to an
incident of domestic violence between
[respondents]. Both parents were arrested,
and there was no alternative placement
arrangement for the children.
. . . .
9. That from May 22, 2010 through October
27, 2011 [DSS] maintained legal custody of
[Amy, Cathy, Sally and Emily]. The parents
stipulated to the neglect allegations
contained in the Juvenile Petition filed on
May 22, 2010. [Cathy and Sally] were placed
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with [respondent-father]. [Emily], as an
infant, was placed with [respondent-mother],
who was breastfeeding at the time. [Amy]
remained in foster care until she requested
to be placed with her siblings in her
father’s home, which was done on September
20, 2010. Following an incident with her
father, [Amy] was again placed in a group
home on May 18, 2011. In February of 2011,
[respondent-mother] had to undergo emergency
surgery, and [Emily] was moved to
[respondent-father’s] home with her
siblings. During the period of time from
May 2010 to October 27, 2011, [DSS] made
reasonable efforts with each parent. [Amy]
described life after the parents’ separation
as showing “no improvement.” The same
problems existed with each parent, just
involved other people.
10. That [respondents] successfully
completed the Domestic Violence Program, and
initiated couples counseling between May and
October of 2011. . . . That legal custody of
[Cathy, Sally, and Emily] was restored to
[respondents] in October 2011. [Respondent-
father] exercised primary custody, with
[respondent-mother] exercising secondary
custody. Subsequently, [respondent-mother]
reported to a Social Worker at [DSS]
regarding [respondent-father’s] care of the
children. She complained that [respondent-
father’s] house was unclean, and the
children were being neglected and abused.
She complained that [Cathy] was not going to
school, and [Amy] had to babysit the younger
children. She complained that [respondent-
father] was verbally and physically abusive
to the children over small things.
[Respondent-mother] personally observed the
house to be unclean, and in disarray.
[Respondent-mother] personally observed the
children with poor hygiene. [Amy] testified
that her younger siblings were not being
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bathed, and did not have adequate food.
11. That in January of 2012, [DSS] received
reports alleging neglect of [Cathy, Sally,
and Emily] due to [respondent-father’s]
dirty home and care of the children. This
Court finds the testimony regarding the
children’s living environment while in the
physical custody of [respondent-father] to
be credible. The children were not being
properly cared for by [respondent-father].
[Respondent-father’s] home had deteriorated
to deplorable conditions. [Cathy] had
numerous tardies and absences from school.
[Cathy, Sally, and Emily] did not appear
properly groomed. [Cathy, Sally, and Emily]
were subsequently placed in the physical
custody of [respondent-mother] pursuant to a
Safety Assessment, while [DSS] conducted an
investigation of the recent allegations.
[Amy] remained in the legal custody of
[DSS]. [Respondent-mother] testified that
when [Cathy, Sally, and Emily] returned to
her physical custody in January of 2012,
they would wake up screaming, and hoarded
food in drawers, toys and purses. She had
never previously observed such actions from
her children.
12. That [respondent-mother] filed for [a]
Domestic Violence Protective Order against
[respondent-father] in January of 2012,
which was subsequently dismissed. In March
of 2012, [respondent-mother] again filed for
a Domestic Violence Protective Order against
[respondent-father] alleging fear of further
violence, threats of harm from him, and a
threat to kill her. She was granted the
Domestic Violence Protective Order on March
23, 2012, which remained in effect until
March 24, 2013.
13. That [DSS] subsequently learned that
[respondent-mother] had allowed [Cathy,
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Sally and Emily] to be cared for by [Mr. C.]
for a three day period, when she did not
have housing due to a miscommunication
relative to moving into a new residence.
[Emily] sustained bruises on her buttocks
during said period. [DSS] filed a Petition
alleging [Cathy, Sally and Emily] to be
neglected Juveniles on March 12, 2012, and
assumed legal custody of said children on
the same date.
14. That in March of 2012, [respondent-
mother] filed for a No-Contact Order against
[Mr. C.], which was granted by the Court.
15. That at a hearing held on May 17, 2012,
the parties stipulated to the allegations of
neglect and dependency, to wit: [Neglect]
Despite warning from the petitioner . . . to
avoid contact of the children with [Mr. C.]
in a current Safety Assessment, and a
prohibition in prior Court Orders, the
mother has been cohabiting with [Mr. C.] for
at least the last three days and allowed him
to inappropriately discipline [Emily],
leaving bruising on her buttocks area. She
has engaged in domestic violence in the
presence of the children with
[Mr. C.] and has a history of domestic
violence in her relationship with the father
of the children. . . . [Dependency] The
mother allowed the children to be exposed to
[Mr. C.], with whom she is engaged in a
domestic violence ridden relationship. The
father’s home was not an appropriate living
arrangement due to its deplorable state.
There are no relatives in this state to
provide care for the children.
16. That [DSS] made reasonable efforts with
[respondent-mother] from March of 2012 until
August 29, 2012. [Respondent-mother] was
directed to comply with the terms of her
Family Services Agreement. She was directed
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to participate in individual and family
therapy, maintain a support system, maintain
housing and be financially responsible for
her rent and utilities. [Mr. C.] was
prohibited from contact with the children.
17. That [Amy] was placed in a trial home
placement with her mother in June of 2012.
Subsequent to said placement, [respondent-
mother] maintained a relationship with [Mr.
C.]. [Amy] observed [Mr. C.] in her mother’s
home with her mother’s consent on more than
one occasion. That in July of 2012, [Amy]
and her mother engaged in a physical
altercation, wherein [Mr. C.] was present.
[Amy] sustained a black eye [] and
[respondent-mother] was bitten on the
finger, and presented with bruises about her
body. [Respondent-mother] was charged with
misdemeanor child abuse; however, the
charges were dismissed. [Amy] was not
informed of the Court Date, and did not have
transportation to testify in District Court
regarding the incident; hence, the charges
were dismissed by the state. [Respondent-
mother] denies that [Mr. C.] was ever at her
residence. Efforts toward reunification
with [respondent-mother] were ceased [] at
the hearing on August 29, 2012 with a
finding that such efforts would be futile
and inconsistent with the Juveniles’
permanent home within a reasonable period of
time. . . .
. . . .
19. That [respondent-mother] has
consistently maintained that she is not in a
relationship with [Mr. C.]. She has
testified before this Court, that she has
had no contact with [Mr. C.] since February
of 2012. She has testified that [Mr. C.]
has stalked her.
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20. That on July 9, 2013, [respondent-
mother] filed for a Complaint for No-Contact
Order for Stalking or Nonconsensual Sexual
Conduct against [Mr. C.]; however, said
request was dismissed as [respondent-mother]
did not attend the hearing, citing her work
obligations. On July 20, 2013,
[respondent-mother] filed for a Complaint
for No-Contact Order for Stalking or
Nonconsensual Sexual Conduct against [Mr.
C.]; the Order was entered on the same date
and effective for one year thereafter.
21. That [Mr. C.] denies that he has
maintained a relationship with [respondent-
mother], denies that [respondent-mother]
consented to any visits to her home, and
denies having sexual relations with
[respondent-mother], as testified to by his
daughter, [M.C.]. On the same day of the
Court hearing wherein efforts towards
reunification were ceased with [respondent-
mother], on August 29, 2012, she was
observed with [Mr. C.]. [Respondent-mother]
indicates that she observed him walking down
the street, and pulled her car over to talk
to him. When questioned during testimony
about this incident, [Mr. C.] pled the Fifth
Amendment Right against Incrimination
indicating his knowledge of the existence of
a No-Contact Order between the parties.
This Court finds that [Mr. C.’s] testimony
is not credible.
22. That [respondent-mother] attended a
basketball game with [Mr. C.] in December of
2012. She had testified that she was
working on the date in question; however,
[Ms. B.], his ex-significant other, and his
daughter,[M.C.], saw [respondent-mother] at
the game. In fact, her attendance at the
game caused much consternation to the child.
Additionally, [respondent-mother] has
provided [Mr. C.] transportation to serve
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his weekends in jail. [M.C.] has heard
[respondent-mother] and [Mr. C.] engaging in
sexual intercourse at his home on the
weekends. This Court finds the testimony of
[Ms. B.] and [M.C.] to be very credible.
23. During this hearing on termination of
parental rights, she has reiterated that she
has not maintained a relationship with [Mr.
C.]. She is not credible in her assertions
to this Court regarding her relationship
with [Mr. C.].
24. That [respondent-mother] has engaged
[in and] been involved in abusive
relationships with [name omitted], [Amy’s]
biological father, [respondent father],
[Cathy, Sally, and Emily’s] biological
father and [Mr. C.], her significant other.
25. That at the hearing held on August 29,
2012, [respondent-father] was ordered to
comply with his Family Services Agreement.
He was directed to complete a parenting
class, follow all recommendation[s] and
demonstrate that he can effectively
discipline and maintain a clean home. He
was directed to actively participate in
individual therapy. He was directed to
obtain and maintain stable housing, and in a
timely manner, be responsible for payment of
his rent and utilities.
26. That [respondent-father] began therapy
in August of 2012, and maintained therapy
until the plan of reunification for him was
changed. [Cathy, Sally, and Emily] have
been in foster care since May of 2012.
[Respondent-father] did not obtain housing
until February of 2013. He resided with
various friends until he subsequently
obtained a room at the TravelLodge Motel,
initially in exchange for work at the motel.
Subsequently, he became an employee of the
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hotel and rented a room. This housing, nor
his previous housing arrangements, was not
appropriate for placement of the three
girls. Five months prior to the filing of
the Petition to terminate his parental
rights, [respondent-father] rented a two
bedroom mobile home, which appears to be
clean. He has maintained said housing. He
has completed a parenting class. He has
maintained employment since December of
2012, working 60 to 80 hours per week, and
is current in his child support. He
recently purchased a vehicle from his friend
[name omitted]. Prior to this, [DSS] had
assisted [respondent-father] by providing
bus passes transportation vouchers of bus
passes on two occasions. [Respondent-
father] has maintained visitation with his
children, and said visitations have gone
well, and been appropriate.
27. That [Amy] noted the difficulties that
[respondent-father] had in providing
appropriate care for herself and her
siblings, when residing in Nevada and North
Carolina. [Respondent-mother] noted the
difficulties that [respondent-father] had in
providing appropriate care for [Cathy,
Sally, and Emily] when providing care for
[Cathy, Sally, and Emily]. The children
were placed in his primary care after the
hearing held on October 27, 2011, and five
(5) months later, they were removed due to
[a] filthy living environment in which he
had allowed his residence to deteriorate.
There were numerous tardies and absences of
[Cathy] from school, which were attributed
to [respondents]. [Respondent-father] was
not able to maintain his residence
subsequent to the children’s removal.
. . . .
29. That [respondent-father] attributes the
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removal of the children from his home to
[respondent-mother]. He testified that
[respondent-mother] wanted primary custody
of the children, and when he refused her
request, she threatened that he was “going
down.” [Respondent-father] testified that
he worries that [respondent-mother] would
make further allegations against him if the
children were ever returned to him.
Respondents do not challenge the above findings of fact,
and they are therefore binding on appeal. See In re Humphrey,
156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) (“Findings of
fact to which a respondent did not object are conclusive on
appeal.”).
Respondent-father argues that because he satisfied his case
plan, he addressed conditions which led to the removal of his
children, and, therefore, there is no likelihood of future
neglect. The trial court’s findings of fact demonstrate that
respondent-father exposed the children to domestic violence and
substance abuse; that three months after the children were
returned to respondents’ legal custody, respondent-father was
unable to provide for the children’s physical and economic
needs; that respondent-father had to rely upon friends for
temporary housing for himself; and respondent-father did not
obtain housing appropriate for his three daughters until
February 2013. Further, although the children were removed from
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respondent-father’s home due to its deplorable conditions,
respondent-father blames respondent-mother for the children’s
removal. These findings support the trial court’s determination
that respondent-father has neglected his children and that there
is a reasonable probability that the children will be neglected
if respondent-father is responsible for the children’s care in
the future. The trial court did not err by concluding that
respondent-father’s parental rights were subject to termination
for neglect.
Respondent-mother argues that since there was no evidence
that she “was in any relationship at all at the time of the
termination hearing, or even since the filing of the
petition[,”] there was no risk of repetition of domestic
violence and thus neglect of her children.
We hold that the trial court’s findings of fact support its
conclusion of law that respondent-mother neglected her children
and that such neglect will likely be repeated should her
children be returned to her care. A trial court’s determination
that neglect is likely in the future “must of necessity be
predictive in nature[.”] In re McLean, 135 N.C. App. 387, 396,
521 S.E.2d 121, 127 (1999). Respondent-mother’s past actions
and poor decisions are important indicators of the likelihood of
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repetition of neglect. Respondent-mother’s repeated failure to
stop the cycle of violent incidents involving the fathers of her
children and Mr. C., which continued after the petition was
filed, was sufficient to show neglect would likely recur if the
children were returned to respondent-mother’s care.
We, therefore, hold that the trial court did not err in
determining that the ground of neglect existed with respect to
respondent-mother and respondent-father. Our determination that
there is at least one ground to support a conclusion that
parental rights should be terminated makes it unnecessary to
address the remaining grounds. In re Clark, 159 N.C. App. 75,
84, 582 S.E.2d 657, 663 (2003).
II. Best Interest
Respondent-mother also contends the trial court abused its
discretion in concluding that the termination of her parental
rights was in the best interest of her children.
In determining whether terminating the parent’s rights is
in the juvenile’s best interest, 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.
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(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 placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110 (2013). The court’s decision is
discretionary and reviewable only for abuse of discretion. In
re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).
“A ruling committed to a trial court’s discretion is to be
accorded great deference and will be upset only upon a showing
that it was so arbitrary that it could not have been the result
of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324
S.E.2d 829, 833 (1985).
Here, the trial court made the following findings of fact
to support its conclusion that it is in the best interest of the
children that respondent-mother’s rights be terminated:
35. That [Cathy] is ten years old, [Sally]
is five years old, and [Emily] is three
years old. The Juveniles have been in the
legal custody of [DSS] most recently since
12 March 2012. They were previously placed
in the legal custody of [DSS] from May 22,
2010 through October 27, 2011, having been
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adjudicated neglected and dependent
Juveniles. They are young children and there
is a strong likelihood of adoption.
Termination of parental rights will aid in
the accomplishment of the permanent plan for
the Juveniles.
36. That [Sally] and [Emily] are placed
together in a pre-adoptive home . They are
very bonded to their foster parents.
[Sally] needs and has a structured
environment. They refer to the foster
parents as “mommy” and “daddy.”
37. That [Cathy] is not in a pre-adoptive
home; however, [DSS] has identified a pre-
adoptive home for her. [Cathy] was
previously placed in said home, and has a
bond with the previous foster parent.
[Cathy] appears to be a happy child, and
makes friends easily. She has asked her 18
year old daycare teacher to adopt her. She
has asked the Guardian ad Litem to adopt
her. She has asked the nephew and wife of
her current foster parents to adopt her.
[Cathy] has articulated that she would
prefer to live with her mother, as “Dad
cannot care for them.”
38. There is a strong bond between the
children and their parents. It is clear
that the children love their parents, and
that the parents love the children.
39. That it is in the best interests of
[Cathy, Sally, and Emily] that the parental
rights of [respondent-mother] and
[respondent-father] be terminated.
Respondent-mother does not challenge the above findings of fact.
She argues that because she made progress on her plan, the trial
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court should not have terminated her rights. As these findings
reflect a reasoned decision, we find no abuse of discretion.
Conclusion
Based on the foregoing, we affirm the trial court’s order
terminating the parental rights of respondent-mother and
respondent-father.
AFFIRMED.
Judges DILLON and DAVIS concur.
Report per Rule 30(e).