In re: A.N.S. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-521
No. COA22-277
Filed 2 August 2022
Guilford County, No. 18 JT 52
IN THE MATTER OF:
A.N.S., Jr.
Appeal by Respondent from order entered 29 December 2021 by Judge William
B. Davis in Guilford County District Court. Heard in the Court of Appeals 12 July
2022.
Mercedes O. Chut for Guilford County Department of Health and Human
Services.
Ward and Smith, P.A., by Mary V. Cavanagh, for Guardian ad litem.
Mary McCullers Reece for Respondent-Appellant Father.
COLLINS, Judge.
¶1 Respondent-Father appeals from the trial court’s order terminating his
parental rights to his minor child on the grounds on neglect and dependency. We
affirm.
IN RE: A.N.S., JR.
2022-NCCOA-521
Opinion of the Court
I. Background
¶2 Father is the biological father of Arthur,1 a child born in December 2014. On
7 May 2018, Father shot and killed Arthur’s mother in Arthur’s presence; Father was
charged with the first-degree murder of Arthur’s mother. On 9 May 2018, based on
the fatal shooting of Arthur’s mother, the Guilford County Department of Social
Services (“DSS”) took nonsecure custody of Arthur and his stepsibling.2 DSS filed a
petition alleging Arthur and his stepsibling were abused, dependent, and neglected.
¶3 On 8 October 2018, the matter came on for an adjudication hearing; the trial
court adjudicated Arthur and his stepsibling abused, neglected, and dependent. The
trial court found that both children had witnessed Father fatally shoot Arthur’s
mother as she attempted to leave the family home while escorted by law enforcement.
The trial court moved to the dispositional stage and relieved DSS of the obligation to
make reasonable efforts to reunify Arthur with Father and suspended all contact
between Father and Arthur. Arthur and his stepsibling were placed with maternal
grandparents.
¶4 In May 2019, DSS filed a petition to terminate Father’s parental rights based
on the grounds of neglect and dependency. On 31 January 2020, Father was convicted
1 We use a pseudonym to protect the identity of the minor child. See N.C. R. App. P.
42.
2While Arthur’s stepsibling was part of the juvenile proceedings, this appeal does not
concern his stepsibling.
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of the first-degree murder of Arthur’s mother and sentenced to life in prison without
the possibility of parole. The hearing on the petition to terminate Father’s parental
rights was held on 10 May 2021. The trial court terminated Father’s rights on the
grounds of neglect and dependency and concluded that it was in Arthur’s best
interests to terminate Father’s parental rights. Father timely appealed.
II. Discussion
¶5 In a termination of parental rights proceeding, the trial court must adjudicate
the existence of any of the grounds for termination alleged in the petition. At the
adjudication hearing, the trial court must “take evidence [and] find the facts”
necessary to support its determination of whether the alleged grounds for
termination exist. N.C. Gen. Stat. § 7B-1109(e) (2019). “At the adjudicatory stage,
the petitioner bears the burden of proving by ‘clear, cogent, and convincing evidence’
the existence of one or more grounds for termination under section 7B-1111(a) of the
General Statutes.” In re A.U.D., 373 N.C. 3, 5-6, 832 S.E.2d 698, 700 (2019) (citing
N.C. Gen. Stat. § 7B-1109(f)).
¶6 When reviewing the trial court’s adjudication of grounds for termination, we
examine whether the trial court’s findings of fact “are supported by clear, cogent and
convincing evidence and [whether] the findings support the conclusions of law.” In re
E.H.P., 372 N.C. 388, 392, 831 S.E.2d 49, 52 (2019) (quoting In re Montgomery, 311
N.C. 101, 111, 316 S.E.2d 246, 253 (1984)). Any unchallenged findings are “deemed
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supported by competent evidence and are binding on appeal.” In re T.N.H., 372 N.C.
403, 407, 831 S.E.2d 54, 58 (2019) (citations omitted). The trial court’s conclusions of
law are reviewed de novo. In re C.B.C., 373 N.C. 16, 19, 832 S.E.2d 692, 695 (2019).
¶7 The first ground for termination found by the trial court was neglect under
N.C. Gen. Stat. § 7B-1111(a)(1). This subsection allows for parental rights to be
terminated if the trial court finds that the parent has neglected their child to such an
extent that the child fits the statutory definition of a “neglected juvenile.” N.C. Gen.
Stat. § 7B-1111(a)(1) (2019). A neglected juvenile is defined, in relevant part, as a
juvenile “whose parent, guardian, custodian, or caretaker does not provide proper
care, supervision, or discipline; . . . or who lives in an environment injurious to the
juvenile’s welfare[.]” N.C. Gen. Stat. § 7B-101(15) (2019).
¶8 “[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 Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232
(1984).
Termination of parental rights based upon this statutory
ground requires a showing of neglect at the time of the
termination hearing or, if the child has been separated
from the parent for a long period of time, there must be a
showing of a likelihood of future neglect by the parent.
When determining whether such future neglect is likely,
the district court must consider evidence of changed
circumstances occurring between the period of past neglect
and the time of the termination hearing.
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In re R.L.D., 375 N.C. 838, 841, 851 S.E.2d 17, 20 (2020) (ellipses, quotation marks,
and citations omitted).
¶9 In its termination order, the trial court made the following relevant findings of
fact:
2. The juveniles have been in the legal and physical custody
of the Guilford County Department of Health and Human
Services (hereinafter referred to as “the Department”) a
consolidated county human services agency, pursuant to
Court Order continuously since May 7, 2018.
....
10. The conditions that led to the juveniles coming into
custody include but are not limited to domestic violence in
the presence of the juveniles; injurious environment; the
juveniles witnessing the fatal shooting of their mother by
[Father]; [Father] is charged with the mother’s murder[.]
11. The juveniles were adjudicated abused, neglected, and
dependent on August 27, 2018.
....
13. The Department has not developed a service agreement
with nor does the Department intend to offer a service
agreement to the [Father], due in pertinent part to the
egregious circumstances that brought the juveniles into
custody whereby [Father] fatally shot and killed the
[Mother], in the presence of the juveniles and as ordered by
the Court in the Pre-Adjudication, Adjudication and
Disposition Order dated August 27, 2018, filed on October
8, 2018, which relieved the Department of making
reasonable efforts of reunification with [Father]. In
addition, [Father] has been charged and convicted of First
Degree Murder in regard to the death of the mother,
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although as of January 31, 2020, the conviction is under
appeal. Based on these facts, the Department did not have
any services available that could be offered to [Father] in
order to correct the conditions that brought the juveniles
into custody with the Department.
¶ 10 Based upon these findings, the trial court concluded,
18. Grounds exist to terminate the parental rights of
[Father], pursuant to N.C.G.S. § 7B-1111(a)(1), given that
the parent abused and/or neglected the juveniles, there is
ongoing neglect and a likelihood of the repetition of abuse
and/or neglect.
a. [Father’s] past abuse and neglect of the juvenile
[Arthur] was proven as detailed in the
Pre-Adjudication, Adjudication and Disposition
Order dated August 27, 2018, filed on October 8,
2018, specifically exposing him to the trauma of
domestic violence and the violent death of his
mother. [Father’s] behavior has deprived his child
of contact with his father for the past two years and
with his mother for the remainder of his life. His
past actions and lack of regard for his child’s
well-being are indicative of a likelihood of repetition
of neglect in the event that custody was returned to
him.
¶ 11 Father does not challenge the findings of fact, and they are binding on appeal.
In re T.N.H., 372 N.C. at 407, 831 S.E.2d at 58. The findings amply support the trial
court’s conclusion of law that grounds exist to terminate Father’s parental rights for
neglecting Arthur. Arthur was removed from Father’s care on 7 May 2018 because
he watched Father fatally shoot his mother. Arthur was adjudicated abused,
neglected, and dependent as a result. Since Arthur’s adjudication, Father was
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convicted of the first-degree murder of Arthur’s mother.3 Furthermore, the
Department has not and will not develop a service agreement with Father because of
the egregious circumstances that brought Arthur into custody. Thus, Father has
received no services while Arthur has not been in Father’s care, and he will receive
none in the future. These facts support the trial court’s conclusion that: Father
neglected Arthur; there is ongoing neglect; there is a likelihood of the repetition of
neglect in that Father did not and likely will “not provide proper care, supervision, or
discipline” of Arthur; and Arthur lived and would likely live “in an environment
injurious to the juvenile’s welfare” were he ever returned to Father’s care. See N.C.
Gen. Stat. § 7B-101(15).
¶ 12 Father argues that “[i]t is clear that the trial court deemed the event that led
to the 2018 adjudication to be a sufficient ground for termination in and of itself.” We
disagree. Not only did the trial court consider Father’s murder of Arthur’s mother in
front of Arthur and the resulting abuse, neglect, and dependency adjudication, the
3 Although Father’s conviction is pending appeal, a conviction for first-degree murder
carries a mandatory sentence of life in prison without parole. N.C. Gen. Stat. § 14-17(a)
(2019). Father appealed the trial court’s denial of his Batson objection, and this Court
remanded the matter to the trial court for a Batson hearing in State v. Smith,
2021-NCCOA-391. Upon remand, the trial court held a Batson hearing and denied Father’s
Batson objection; on 12 November 2021, Father appealed the denial of his Batson objection
to this Court in COA22-307. The record was filed on 13 April 2022 and Father filed his brief
on 8 June 2022. We again note that Father does not challenge the trial court’s conclusion
that he murdered Mother. Moreover, the standard of proof in a criminal trial is guilt beyond
a reasonable doubt while the standard of proof in a termination of parental rights case is
clear, cogent, and convincing evidence of grounds for termination.
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trial court also considered Father’s subsequent murder conviction and the fact that
Father has not and will not receive any DSS services which are designed to help an
offending parent rectify the conditions that caused the child to be removed.
¶ 13 Father also argues that the trial court failed to consider the likelihood that
Arthur will never be returned to his Father’s care. Father cites In re C.A.S., 231 N.C.
App. 514, 753 S.E.2d 743 (2013) (unpublished), to support his argument that Arthur
could not be neglected if Father is in prison. In In re C.A.S., our Court reversed
termination of parental rights based on abuse where there was “almost no probability
of future abuse because father will be incarcerated for at least 15 years” and thus
there was “not enough evidence to support the trial court’s conclusion that there is a
probability of repetition of abuse.” Id. However, abuse and neglect are different
grounds and Father cannot “provide proper care, supervision, or discipline” to Arthur
if Father is in prison for life without the possibility of parole. See N.C. Gen. Stat.
§ 7B-101(15).
III. Conclusion
¶ 14 The trial court did not err by terminating Father’s parental rights based on the
ground of neglect. We need not reach Father’s argument that the trial court erred by
terminating his parental rights based on the ground of dependency. In re D.W.P., 373
N.C. 327, 340, 838 S.E.2d 396, 406 (2020). The trial court’s order is affirmed.
AFFIRMED.
IN RE: A.N.S., JR.
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Chief Judge STROUD and Judge ARROWOOD concur.