In re L.M.C. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-732
NORTH CAROLINA COURT OF APPEALS
Filed 7 January 2014
IN THE MATTER OF:
Guilford County
Nos. 10 JT 328-29
L.M.C. and C.L.C.
Appeal by respondent from order entered 5 April 2013 by
Judge Sherry Alloway in Guilford County District Court. Heard
in the Court of Appeals 10 December 2013.
Mercedes O. Chut for Petitioner Guilford County Department
of Social Services.
Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett,
for guardian ad litem.
Hunt Law Group, P.C., by James A. Hunt, for respondent.
DILLON, Judge.
Respondent, the mother of the juveniles L.M.C. and C.L.C.,
appeals from an order terminating her parental rights. After
careful review, we affirm.
I. Factual & Procedural Background
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On 25 May 2010, the Guilford County Department of Social
Services (“DSS”) filed a petition alleging that L.M.C. and
C.L.C. were abused, neglected and dependent juveniles. DSS
stated that it received a report on 29 April 2010 concerning
suspected sexual abuse of one of the juveniles. A neighbor who
cared for the juveniles indicated that one of the children told
her that respondent’s boyfriend “made her touch his pee pee”;
that the child’s bottom “looked very red and irritated”; and
that the child told her that her mom said not to tell anybody
what was occurring in the home.
A social worker met with respondent and her family on 29
April 2010 to discuss the allegations. Respondent denied having
any knowledge of any inappropriate behavior between her
boyfriend and her daughter. L.M.C. denied that respondent’s
boyfriend had ever touched her, but disclosed that C.L.C. had
told respondent that respondent’s boyfriend had touched her
vagina. The social worker later spoke with C.L.C. at school,
and C.L.C. disclosed that respondent’s boyfriend had touched her
vagina and made her touch his penis. C.L.C. further stated that
respondent’s boyfriend had asked her to watch a “naked movie”
with him and then asked her to do the things depicted in the
movie, and she complied. C.L.C. also told the social worker
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that she had told her mom about the abuse. The social worker
informed respondent that her boyfriend would have to leave her
home; after some initial hesitancy, respondent agreed.
A forensic interview with C.L.C. was conducted on 24 May
2010. During the interview, C.L.C. disclosed that both her
father and respondent’s boyfriend had touched her vagina. She
further stated that she had told respondent about the
boyfriend’s abuse, but that respondent had asked that she not
tell anyone because she wanted her boyfriend to come home.
Respondent admitted to the police that C.L.C. had informed
her of the abuse. Respondent stated that she had confronted her
boyfriend about the abuse, and he had admitted to being
intoxicated, but denied that any penetration had occurred.
Respondent continued to allow her boyfriend to live in her home
after the disclosure of abuse. Police advised DSS that criminal
charges had been filed against respondent for aiding and
abetting felony child abuse. DSS responded by taking non-secure
custody of the juveniles.
On 9 July 2010, C.L.C. was adjudicated an abused, neglected
and dependent juvenile, and L.M.C. was adjudicated a neglected
and dependent juvenile. The trial court entered an amended
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dispositional order on 9 November 2010, ordering a concurrent
plan of reunification and adoption for the juveniles.
On 16 March 2012, a permanency planning review hearing was
held in district court. The court found as fact that, on 5
March 2012, DSS received information that respondent had been
arrested for driving while impaired, driving while license
revoked, and driving without insurance, tags, or registration.
DSS was advised that the mother was in jail and being held under
a $1,200.00 bond.
The following day, a social worker contacted respondent and
asked whether she planned to attend her visitation that day and
whether she had “anything new to report.” Respondent responded
that she was planning to attend visitation and that she had
nothing new to report. The social worker then informed
respondent that she was aware of her arrest. Respondent began
to cry and admitted she had “no one to blame but herself.”
On 10 April 2012, the trial court changed the permanent
plan for the juveniles to adoption “based on the mother’s recent
poor judgment, lack of consistent progress on her case plan, and
the amount of time the juveniles have been in care[.]” On 16
May 2012, DSS filed a petition to terminate respondent’s
parental rights. On 5 April 2013, the trial court entered an
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order terminating respondent’s parental rights with respect to
L.M.C. and C.L.C. upon concluding that grounds for termination
existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and (2).
From this order, respondent appeals.
II. Analysis
A. Termination Based on Neglect
Respondent first argues that the trial court erred by
concluding that grounds existed to terminate her parental
rights. We disagree.
N.C. Gen. Stat. § 7B-1111(a) (2011) sets out the statutory
grounds for termination of parental rights. A finding that any
one of the enumerated grounds have been met is sufficient to
support termination. In re Taylor, 97 N.C. App. 57, 64, 387
S.E.2d 230, 233-34 (1990). “The standard of appellate review is
whether the trial court’s findings of fact are supported by
clear, cogent, and convincing evidence and whether the findings
of fact support the conclusions of law.” In re D.J.D., 171 N.C.
App. 230, 238, 615 S.E.2d 26, 32 (2005).
In the instant case, the trial court concluded that grounds
existed to terminate respondent’s parental rights based on
neglect. See N.C. Gen. Stat. § 7B-1111(a)(1) (2011). Our
General Statutes define a “neglected juvenile” as
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[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) (2011). 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, where, as here, a child has been removed
from the parent’s custody before the termination hearing and the
petitioner presents evidence of prior neglect, “[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.” In re Ballard, 311 N.C. 708, 715, 319
S.E.2d 227, 232 (1984). Additionally, the determination of
whether a child is neglected “must of necessity be predictive in
nature, as the trial 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).
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The juveniles in this case came into the care of DSS after
respondent’s boyfriend sexually abused C.L.C. The trial court
found as fact that the juveniles were adjudicated neglected on 9
June 2010. The trial court also found the following facts at
the termination hearing:
10. During the forensic interviews of the
minor children on May 24, 2010, it was
learned that [respondent] had some knowledge
of the sexual abuse of the minor child prior
to DSS becoming involved with the family.
11. [Respondent] has held at least eight
jobs throughout the life of the case but has
not maintained any job longer than six
months.
. . . .
13. [Respondent] began working with a man
by the name of Felix in March, 2012, for the
Turkish Grill. This employment involved
[respondent] traveling with a group of men
and staying overnight at a motel with the
men.
. . . .
15. At a visit in December, 2011, with the
minor child[, respondent] brought a man and
asked [C.L.C.] to sing for the man. The
social worker advised [respondent that] this
was not appropriate given the sexual abuse
endured by the minor child.
16. [Respondent] was convicted of DWI in
2004, 2008 and 2012.
17. [Respondent] had one positive drug
screen for marijuana on August 12, 2012.
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18. In August 2012, [respondent] attempted
to obtain the address of the foster home
where the minor children were residing
through the minor child [C.L.C.].
[Respondent] asked [C.L.C.] not to tell the
foster mother.
19. [Respondent] has complied at various
times with components of her case plan but
is still not at the point where unsupervised
visitation with the minor children is
recommended.
20. There are concerns about [respondent’s]
honesty and some recent incidents which
point to her lack of integrity and inability
to be truly open, honest and transparent.
21. [Respondent] continues to [exhibit]
questionable judgment in her decision
making.
a. [respondent’s] job with the Turkish
Grill where she stayed overnight in a
hotel with 3 to 4 men.
b. An incident where she wanted her
daughter, [C.L.C.], to sing to a male
friend that [respondent] had brought to
a visit at DSS and [respondent’s]
inability to understand the
inappropriateness of that given the
circumstances that led to the
children’s removal from the home.
c. [Respondent] was in therapy with a
male therapist for a year and then
states that she could not talk to a
male therapist about her own issues and
her failure to inform DSS about that
issue.
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d. [Respondent’s] dishonesty about
having a dog in her home and her recent
Driving While Impaired charge.
22. [Respondent] has not been able to
address in therapy the issues that led to
the children’s removal because in order to
address those issues in therapy [respondent]
must first address her own sexual abuse and
at this time [respondent] has not addressed
her own issues.
23. The therapist for the children is still
concerned about the children’s safety in
that she does not believe the minor child
[C.L.C.], at this time is not willing to
report to [respondent] if anything happened
to her.
Based on these findings, the trial court concluded that “there
is a reasonable possibility that [the juveniles would continue
to be neglected] for the foreseeable future.”
Respondent does not argue that the trial court’s findings
of fact are without evidentiary support. Instead, respondent
argues that the trial court should have drawn different
conclusions from the evidence as a whole. However, it is the
trial “judge’s duty to weigh and consider all competent
evidence, and pass upon the credibility of the witnesses, the
weight to be given their testimony and the reasonable inferences
to be drawn therefrom.” In re Whisnant, 71 N.C. App. 439, 441,
322 S.E.2d 434, 435 (1984). Accordingly, we are bound by the
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trial court’s findings of fact. Koufman v. Koufman, 330 N.C.
93, 97, 408 S.E.2d 729, 731 (1991).
Based on its unchallenged findings, the trial court made an
ultimate finding that respondent had neglected the juveniles and
that there was a “reasonable probability that such neglect
[would] continue for the foreseeable future.” Consequently, we
conclude the trial court’s findings of fact support its
conclusion that grounds existed pursuant to N.C. Gen. Stat. §
7B-1111(a)(1) to terminate respondent’s parental rights.
B. Termination Based on Wilful Failure To Make Progress
Respondent additionally argues that the trial court erred
by concluding that grounds existed pursuant to N.C. Gen. Stat. §
7B-1111(a)(2) to terminate her parental rights. However,
because we conclude that grounds existed pursuant to N.C. Gen.
Stat. § 7B-1111(a)(1) to support the trial court’s order, we
need not address the remaining ground found by the trial court
to support termination. Taylor, 97 N.C. App. at 64, 387 S.E.2d
at 233-34.
C. Determination on Best Interest of the Child
In respondent’s final argument, she contends that the trial
court abused its discretion when it concluded that termination
of her parental rights was in the best interests of the
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juveniles. Once statutory grounds for termination have been
established, the trial court is required to “determine whether
terminating the parent’s rights is in the juvenile’s best
interest.” N.C. Gen. Stat. § 7B-1110(a) (2011). When
determining whether it is in the juvenile’s best interests to
terminate the parent’s rights, the trial court is required to
make written findings regarding the relevant factors enunciated
in N.C. Gen. Stat. § 7B-1110(a). Id. “We review the trial
court’s decision to terminate parental rights for abuse of
discretion.” In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d
599, 602 (2002).
Here, in its dispositional findings, the trial court noted
the ages of the juveniles and the following facts relating to
the factors stated in N.C. Gen. Stat. § 7B-1110(a):
c. There is a strong likelihood of adoption.
Both children are reasonably well behaved.
The minor children are attractive children
and have done well in both the foster home
and in school.
d. The minor children are not currently
placed in an adoptive home, but they were
able to bond with the foster parents and
feel safe in their home which indicates that
they would bond with an adoptive home.
e. The minor children have an extremely
strong bond with [respondent]. The minor
children love [respondent]. However,
[C.L.C.] seems to be parentified [sic] in
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that she worries about the [respondent’s]
welfare.
f. The permanent plan for the juveniles is
adoption and terminating [respondent’s]
parental rights is necessary in order for
the juveniles to be adopted.
g. Other relevant considerations are that
there is no other family available for
placement or adoption. Further, the time
period the children have been in DSS custody
is a relevant consideration.
Respondent cites the strong bond she shares with the juveniles
and argues that the trial court erred in determining that
termination was in the best interests of the juveniles because
“the children are not, and have never been, in a potential
adoptive placement.” Furthermore, respondent notes that the
father of the juvenile, who is not a party to this appeal, has
not yet had his rights terminated, and thus it was unlikely that
termination of her parental rights would move the children
closer to permanence. We are not persuaded.
The fact that the father’s parental rights have not been
terminated is irrelevant. As noted by the trial court, the
permanent plan for the juveniles is adoption. If we were to
accept respondent’s argument, the father’s parental rights also
could not be terminated, since respondent’s parental rights
would remain intact. Furthermore, the trial court is not
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required to find that a child is adoptable before terminating a
parent’s parental rights. See In re Norris, 65 N.C. App. 269,
275, 310 S.E.2d 25, 29 (1983), cert. denied, 310 N.C. 744, 315
S.E.2d 703 (1984). Therefore, based on the court’s
dispositional findings of fact, we conclude that the trial
court’s determination that it was in the juveniles’ best
interests to terminate respondent’s parental rights was not
manifestly unsupported by reason.
AFFIRMED.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).