In re: A.W. ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-489
Filed 21 March 2023
Orange County, No. 19 JT 6
In the Matter of:
A.W.
Appeal by Respondent-Father from order entered 9 March 2022 by Judge
Sherri T. Murrell in Orange County District Court. Heard in the Court of Appeals 8
March 2023.
Stephenson & Fleming, LLP, by Deana K. Fleming, for Petitioner-Appellee
Orange County Department of Social Services.
Winston & Strawn LLP, by Stacie C. Knight, for Appellee-Guardian ad Litem.
Robert W. Ewing for Respondent-Appellant Father.
COLLINS, Judge.
Respondent-Father appeals from the trial court’s order terminating his
parental rights to his child based upon neglect, dependency, and prior involuntary
termination of parental rights. Father argues that there is no clear, cogent, and
convincing evidence to support the trial court’s findings that (1) the neglect
experienced by the juvenile will repeat or continue if returned to Father’s care and
custody; (2) Father is incapable of providing for the proper care and supervision of
the juvenile; and (3) Father lacks the ability or willingness to establish a safe home.
IN RE: A.W.
Opinion of the Court
We affirm.
I. Factual Background and Procedural History
On 10 September 2018, the Orange County Department of Social Services
(“DSS”) received a report regarding a domestic violence incident that occurred on 8
September 2018. The report alleged that Father grabbed Mother by the hair, dragged
her into the living room, and hit her in the back of the head in the presence of their
juvenile son, Alan.1 Father then picked up Alan and put him in his crib before
throwing Mother against the wall, grabbing her throat, and strangling her until she
lost consciousness. After the incident, Father sent text messages to Mother
threatening to kill her and Alan. Father was charged with felony assault by
strangulation, misdemeanor assault on a female, and misdemeanor communicating
threats. After the incident, DSS assisted Mother in obtaining a Domestic Violence
Protective Order (“DVPO”) against Father. However, despite the DVPO in effect,
Father continued to have contact with Mother.
On 23 January 2019, DSS filed a juvenile petition and obtained nonsecure
custody of Alan due to the parents’ continued contact despite the DVPO that was in
effect. DSS placed Alan with the same family that had adopted his older sister after
Father’s parental rights were involuntarily terminated and Mother voluntarily
relinquished her rights.
1 Alan is a pseudonym to protect the identity of the minor child. See N.C. R. App. P. 42.
-2-
IN RE: A.W.
Opinion of the Court
Following a hearing, the trial court entered an order on 10 May 2019
adjudicating Alan neglected and ordering that custody remain with DSS. On 23 June
2021, the trial court entered a permanency planning review order changing the
permanent plan from reunification to adoption with a secondary plan of
guardianship. On 29 June 2021, DSS filed a petition to terminate Father’s parental
rights, alleging that (1) he neglected Alan; (2) he is incapable of providing for the
proper care and supervision of Alan; and (3) his parental rights with respect to
another child have previously been involuntarily terminated and he lacks the ability
or willingness to establish a safe home.2
Hearings took place on 26 October 2021, 2 December 2021, 6 January 2022,
and 31 January 2022, after which the trial court entered an order on 9 March 2022
terminating Father’s parental rights. Father timely appealed the permanency
planning order ceasing reunification efforts and the order terminating his parental
rights.
II. Discussion
Father argues that clear, cogent, and convincing evidence does not support the
trial court’s adjudication that grounds existed to terminate Father’s rights.
A. Standard of Review
“Termination of parental rights involves a two-stage process.” In re L.H., 210
2 DSS also filed a petition to terminate Mother’s parental rights to Alan, but it was dismissed
after Mother voluntarily relinquished her rights.
-3-
IN RE: A.W.
Opinion of the Court
N.C. App. 355, 362, 708 S.E.2d 191, 196 (2011) (citation omitted). “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 our General Statutes.” In re D.C., 378 N.C. 556, 559, 862 S.E.2d
614, 616 (2021) (quotation marks and citation omitted). “If the petitioner meets its
evidentiary burden with respect to a statutory ground and the trial court concludes
that the parent’s rights may be terminated, then the matter proceeds to the
disposition phase, at which the trial court determines whether termination is in the
best interests of the child.” In re H.N.D., 265 N.C. App. 10, 13, 827 S.E.2d 329, 332-33
(2019) (citation omitted). If, in its discretion, the trial court determines that it is in
the child’s best interests, the trial court may then terminate the parent’s rights. In
re Howell, 161 N.C. App. 650, 656, 589 S.E.2d 157, 161 (2003).
In reviewing a trial court’s adjudication of grounds for termination, this Court
must “determine whether the findings are supported by clear, cogent and convincing
evidence and [whether] the findings support the conclusions of law” that one or more
grounds for termination exist. In re E.H.P., 372 N.C. 388, 392, 831 S.E.2d 49, 52
(2019) (quotation marks and citation omitted). “If clear, cogent, and convincing
evidence supports a trial court’s findings which support its determination as to the
existence of a particular ground for termination of a respondent’s parental rights, the
resulting adjudication of the ground for termination will be affirmed.” In re J.R.F.,
380 N.C. 43, 47, 867 S.E.2d 870, 874 (2022) (citation omitted). Unchallenged findings
-4-
IN RE: A.W.
Opinion of the Court
are “deemed 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) (citation 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).
We review a trial court’s assessment of a juvenile’s best interest at the
disposition for abuse of discretion, reversing only where the decision is “manifestly
unsupported by reason or is so arbitrary that it could not have been the result of a
reasoned decision.” In re A.R.A., 373 N.C. 190, 199, 835 S.E.2d 417, 423 (2019)
(quotation marks and citation omitted). “The trial court’s dispositional findings of
fact are reviewed under a ‘competent evidence’ standard.” In re K.N.K., 374 N.C. 50,
57, 839 S.E.2d 735, 740 (2020) (citations omitted).
B. Adjudication
1. Neglect
Father contends that “clear, cogent and convincing evidence does not support
the trial court’s ultimate findings and conclusions that Alan’s neglect would be
repeated in the future if he was returned to his father’s care[.]”
A trial court may terminate parental rights under N.C. Gen. Stat.
§ 7B-1111(a)(1) if it determines that the parent has neglected the child within the
meaning of N.C. Gen. Stat. § 7B-101(15). N.C. Gen. Stat. § 7B-1111(a)(1) (2022). A
neglected juvenile is defined, in relevant part, as a juvenile “whose parent, guardian,
custodian, or caretaker . . . [d]oes not provide proper care, supervision, or discipline”
-5-
IN RE: A.W.
Opinion of the Court
or “[c]reates or allows to be created a living environment that is injurious to the
juvenile’s welfare.” N.C. Gen. Stat. § 7B-101(15)(a), (e) (2022).
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 past neglect and a likelihood of future neglect
by the parent.
In re D.L.W., 368 N.C. 835, 843, 788 S.E.2d 162, 167 (2016) (citation omitted). “When
determining whether such future neglect is likely, the [trial] court must consider
evidence of changed circumstances occurring between the period of past neglect and
the time of the termination hearing.” In re Z.V.A., 373 N.C. 207, 212, 835 S.E.2d 425,
430 (2019) (citation omitted).
Here, the trial court made the following relevant findings of fact regarding past
neglect and a likelihood of future neglect:
33. Respondent parents have an on/off again relationship
that began when Respondent mother was a minor marked
by domestic violence due to Respondent father’s
documented mental health issues, including angry
outbursts, and history of substance use, including but not
limited to, alcohol abuse.
34. Respondent father had a history of mental health issues
that include psychiatric hospitalizations, medical
noncompliance, and substance abuse.
....
85. While Respondent father has acknowledged it was
wrong for him to lose control, Respondent father has
continued to place blame on Respondent mother for
pushing him to a breaking point in which he lost
self-control and physically assaulted her in the juvenile’s
-6-
IN RE: A.W.
Opinion of the Court
presence.
....
111. Despite regular engagement [in] therapeutic services
to address his mental health needs, including medication
management, individual therapy, individual and group
DBT, Respondent father continues to demonstrate
difficulty regulating his emotions, becomes argumentative,
agitated, and he is difficult to redirect.
112. On more than one occasion, Respondent father has
sent multiple text messages and/or left voice mail messages
ranting, using curse words, and making accusations
against OCDSS staff, including while actively engaged in
medication management, individual therapy, individual
and group DBT . . . .
113. On 29 December 2020 and 4 January 2021,
Respondent father became dysregulated and aggressive
after visits with the juvenile. Respondent father raised his
voice against the social worker and got physically closer to
her in a threatening manner while his anger escalated.
....
121. Respondent father continues to exhibit the inability to
control and regulate his emotions.
122. In communication, including his own written
correspondence, Respondent father often refers to the
behaviors of the other party as the person that cause[s] him
to negatively react in the situation.
123. Despite his Alcohol and Cannabis Use Disorder
diagnoses, over the course of the case, Respondent father
continued to use marijuana and alcohol contrary to
recommendations regarding his mental health diagnoses
and psychiatric medications.
124. Respondent father minimizes his substance use and
identifies that he uses impairing substances in time of
stress . . . .
125. Respondent father admitted use and tested positive
for marijuana in drug screens during the underlying case
in September 2019, December 2019, and January 2020.
-7-
IN RE: A.W.
Opinion of the Court
126. Respondent father has acknowledged alcohol misuse
in August 2020 and December 2020. Respondent father
has not sustained sobriety which has been consistently
recommended due to his mental health diagnoses.
127. On 11 August 2021, Respondent father was charged
with driving while impaired, resisting a public officer, and
reckless driving wanton disregard in Randolph County.
These charges remain pending.
....
132. It is likely that the neglect experienced by the juvenile
in the care of Respondent father will repeat or continue if
the juvenile is returned to Respondent father’s care and
custody. Specifically, this court finds the following facts:
a. Findings made elsewhere in this order are
incorporated as though fully set out here.
b. Respondent father completed a Batterer’s
Intervention Program; however, he continues to
minimize his role in domestic violence and places
blame on Respondent mother for pushing him to his
limits.
c. Respondent father failed to abide by the terms of
the DVPO while it was in place by having contact
with Respondent mother.
d. Respondent father had clandestine contact with
Respondent mother when he was under court order
of no contact and despite their well-documented
history of domestic violence and engagement in
recommended services.
e. Despite engagement in consistent individual
therapy, individual DBT, and group DBT,
Respondent father continued to show emotional
dysregulation which includes becoming angry and
aggressive, argumentative, and escalated in a
manner that is difficult to redirect.
f. These behaviors subject the juvenile to the
continued risk of physical, emotional, or mental
impairment if he were in Respondent father’s care
-8-
IN RE: A.W.
Opinion of the Court
even if not directed at the juvenile.
g. Despite the role that alcohol played in the
domestic violence incident on 8 September 2018
when Respondent father assaulted Respondent
mother in the juvenile’s presence, Respondent father
has continued to use impairing substances,
specifically alcohol and marijuana, as a coping
mechanism for stress.
h. Respondent father’s continued use of impairing
substances creates an injurious environment for the
juvenile if he were in his care and custody.
i. Respondent father has not established a safe home
for the juvenile.
In making these findings of fact, the trial court considered testimony from Dr. Kristi
Matala, the psychologist who evaluated Father; Emily Allen, the DSS worker
assigned to this case; Nicole Roman, the Guardian ad Litem District Administrator;
Connie Price, Alan’s Guardian ad Litem; and Alan’s foster mother. The trial court
also considered Dr. Karin Yoch’s 2017 psychological evaluation of Father; Dr.
Matala’s psychological evaluation of Father; Father’s letter to the court; emails
between Father and Alan’s foster mother; and the Guardian ad Litem’s report. Thus,
there is clear, cogent, and convincing evidence in the record to support the trial court’s
findings of fact that the neglect experienced by Alan would repeat or continue if he
was returned to Father’s care and custody.
The trial court’s findings of fact support its conclusions of law that Father
neglected Alan, that there is a high likelihood of repetition of similar neglect if Alan
remained in Father’s care or custody, and that Alan would remain at substantial risk
-9-
IN RE: A.W.
Opinion of the Court
of physical, mental, and/or emotional impairment in Respondent father’s care and
custody. See In re K.Q., 381 N.C. 137, 146, 871 S.E.2d 500, 506 (2022) (holding that
the trial court did not err by concluding that there was a likelihood of future neglect
where the father continued to deny his role in the domestic violence, failed to
acknowledge the effects that the domestic violence had on the child, and refused to
accept any responsibility for the child’s removal).
2. Dependency
Father contends that clear, cogent, and convincing evidence does not support
the trial court’s findings and conclusions that Father was incapable and unable to
provide for Alan’s proper care and supervision. Specifically, Father contends that
“the trial court did not make the ultimate findings of fact on the issue of whether
these conditions rendered him incapable or unable to parent his child.” (emphasis
omitted).
A trial court may terminate parental rights for dependency if it determines
that “the parent is incapable of providing for the proper care and supervision of the
juvenile, such that the juvenile is a dependent juvenile within the meaning of
G.S. 7B-101, and that there is a reasonable probability that the incapability will
continue for the foreseeable future.” N.C. Gen. Stat. § 7B-1111(a)(6) (2022).
Incapability may be the result of “substance abuse, intellectual disability, mental
illness, organic brain syndrome, or any other cause or condition that renders the
parent unable or unavailable to parent the juvenile[.]” Id. A dependent juvenile has
- 10 -
IN RE: A.W.
Opinion of the Court
no parent, guardian, or custodian to provide for their care or supervision and no
appropriate alternative childcare arrangement.3 N.C. Gen. Stat. § 7B-101(9) (2022).
Here, the trial court made the following relevant findings in determining that
Father was incapable of providing for Alan’s proper care and supervision, and that
there was a reasonable probability that Father’s incapability would continue for the
foreseeable future:
136. To evaluate Respondent father’s current psychological
functioning related to the juvenile’s case, he was referred
for an updated psychological evaluation.
137. On 26 June 2019, Dr. Matala conducted an updated
psychological evaluation of Respondent father.
138. While Dr. Matala reviewed and considered Dr. Yoch’s
prior psychological evaluation, she completed an
independent evaluation which included a review of records,
mental status examination, clinical interview, and
psychological testing of Respondent father.
....
143. Respondent father acknowledged prior suicide
attempts, five or six times, usually by overdosing on
substances or medication.
144. Respondent father reported experiencing symptoms of
mania, including quickly moving thoughts and constant
physical movement. His report is consistent with
observations of the professionals involved in this case,
including pacing in visitation.
145. Respondent father acknowledged going nine days
without sleeping as well as difficulty sleeping,
concentrating, and controlling his thoughts.
3 Father does not argue that the trial court failed to make findings of fact regarding the
availability of alternative childcare arrangements.
- 11 -
IN RE: A.W.
Opinion of the Court
....
147. Respondent father acknowledged his diagnosis of
borderline personality disorder, and that he was regularly
engaged in individual therapy and medication
management. Despite engagement in services, he was not
able to articulate information from interventions or coping
skills learned from services.
148. When describing the domestic violence incident
against Respondent mother witnessed by the juvenile, he
expressed no empathy for the juvenile despite his own
exposure to domestic violence as a child.
149. Respondent father demonstrated a lack of self-control
over his emotions and thoughts. He remained fixated on
Respondent mother and continued to blame others for his
actions.
....
151. Despite engagement in services and treatment, Dr.
Matala noted that Respondent father continued to exhibit
maladaptive behaviors in functioning, including that he
lacked empathy and blames others for his actions.
Further, testing indicates severe psychological difficulties
with possible psychotic thought process and distorted
perceptions. Consequently, Respondent father requires
long-term intensive treatment.
152. Dr. Matala diagnosed Respondent father with Bipolar
Disorder with mixed features, Borderline Personality
Disorder, Post-Traumatic Stress Disorder (PTSD), Alcohol
Use Disorder, Cannabis Use Disorder, and Opioid Use
Disorder in sustained remission.
153. . . . Additionally, use of alcohol and/or marijuana
negatively impacts his mental health functioning.
....
155. While Respondent father has engaged in medication
management, individual therapy, and DBT individual and
group therapy, he continues to demonstrate emotional
dysregulation consistent with his persistent mental health
diagnoses.
- 12 -
IN RE: A.W.
Opinion of the Court
....
157. Ultimately, Respondent father is incapable of
providing for the proper care and supervision of the
juvenile, such that the juvenile is a dependent juvenile
within the meaning of G.S. § 7B-101, due to his persistent
mental health diagnoses and associated maladaptive
behaviors as set forth herein.
158. There is a reasonable probability that such
incapability will continue for the foreseeable future due to
the following:
a. Findings made elsewhere in this order are
incorporated as though fully set out here.
b. Respondent father’s diagnoses are persistent
mental health conditions that require constant
management through engagement in services.
c. Respondent father has engaged in medication
management and individual therapy that preceded
the juvenile’s birth which has not alleviated related
symptoms.
d. Respondent father has engaged in individual and
group DBT therapy, and while he has shown
improvement with emotional regulation during
engagement in these services, he does not have the
ability to maintain engagement in these services.
e. Even with engagement in services, the behaviors
associated with the conditions remain present,
including the inability to manage anger which
negatively impacts relationships and the juvenile’s
safety as demonstrated by domestic violence.
Based on the same evidence that supported the trial court’s findings of fact
concerning neglect, we determine that clear, cogent, and convincing evidence
supports the trial court’s findings that Father is incapable of providing for the proper
care and supervision of Alan, and that there is a reasonable probability that the
- 13 -
IN RE: A.W.
Opinion of the Court
incapability will continue for the foreseeable future.
These findings of fact support the trial court’s conclusions of law that Father
is incapable of providing for the proper care and supervision of Alan, and that such
incapability “is the result of mental illness and substance use disorder[.]” See In re
A.L.L., 254 N.C. App. 252, 266-67, 802 S.E.2d 598, 608-09 (2017) (holding that the
trial court did not err by concluding that a mother was incapable of caring for her
children where she suffered from severe depression and PTSD and failed to follow
recommendations for treatment, even though there was testimony that her mental
health had improved).
3. Prior Termination of Parental Rights
Father contends that clear, cogent, and convincing evidence does not support
the trial court’s findings and conclusions that Father was unwilling to establish a safe
home for Alan.
Under N.C. Gen. Stat. § 7B-1111(a)(9), a trial court may terminate parental
rights if “[t]he parental rights of the parent with respect to another child of the parent
have been terminated involuntarily by a court of competent jurisdiction and the
parent lacks the ability or willingness to establish a safe home.” N.C. Gen. Stat.
§ 7B-1111(a)(9) (2022). “Termination under § 7B-1111(a)(9) thus necessitates
findings regarding two separate elements: (1) involuntary termination of parental
rights as to another child, and (2) inability or unwillingness to establish a safe home.”
In re L.A.B., 178 N.C. App. 295, 299, 631 S.E.2d 61, 64 (2006). Safe home is defined
- 14 -
IN RE: A.W.
Opinion of the Court
as “[a] home in which the juvenile is not at substantial risk of physical or emotional
abuse or neglect.” N.C. Gen. Stat. § 7B-101(19) (2022).
Father does not dispute that his parental rights were involuntarily terminated
with respect to another child. Rather, Father argues that the record does not support
a finding that he was unwilling to establish a safe home. However, the trial court
made numerous findings relevant to its determination that Father was unable or
unwilling to establish a safe home:
162. On 16 April 2018, Alamance County District Court,
Juvenile Court Division, entered an Order to Terminate
Parental Rights against Respondent father as to the
juvenile . . . .
....
164. There are notable similarities between the Alamance
County Termination of Parental Rights Order . . . and the
findings of fact set forth herein. Summary examples
include, but are not limited to the following:
a. Respondent father was engaged in medication
management with Dr. Su of Carolina Behavioral
Health.
b. Respondent father was engaged in individual
therapy with Sheryl Harper. It was acknowledged
that he learned some anger management, parenting,
and coping skills during sessions; however,
Respondent father was not addressing the
underlying issues as to why the juvenile was in
agency custody.
c. Respondent father did not adequately address his
substance use disorder, and he did not demonstrate
sobriety.
d. Respondent father had a conflictual relationship
with his social worker marked by difficulty in
- 15 -
IN RE: A.W.
Opinion of the Court
communication.
e. Respondent father was consistent and appropriate
in supervised visitation . . . .
165. Respondent father lacks the ability or willingness to
establish a safe home in which the juvenile is not at
substantial risk of physical or emotional abuse or neglect.
The juvenile would be at substantial risk of physical,
mental, or emotional impairment if he were in the home of
Respondent father. In support of this ultimate finding of
fact, the court specifically finds as follows:
a. Findings made elsewhere in this order are
incorporated as though fully set out here.
b. Despite engagement in the Batterer’s
Intervention Program, Respondent father does not
recognize his role in domestic violence and shifts
blame on partners.
c. Respondent father has not abided by no contact
orders in place and continued to maintain some level
of contact or relationship with Respondent mother
despite their documented history of domestic
violence.
d. Respondent father has engaged in therapeutic
services, including medication management,
individual therapy, and DBT individual and group
therapy. Despite engagement in these services,
Respondent father continued to have incidents of
emotional dysregulation, including but not limited
to aggression, compulsive texting, and difficulty in
communication.
e. Respondent father has not demonstrated sobriety.
He continued to use marijuana and alcohol during
the proceedings despite substance use disorder
related to the substances.
Based on the same evidence that supported the trial court’s findings of fact
concerning neglect and dependency, we determine that clear, cogent, and convincing
- 16 -
IN RE: A.W.
Opinion of the Court
evidence in the record supports the trial court’s findings of fact that Father lacks the
ability or willingness to establish a safe home for Alan.
These findings of fact support the trial court’s conclusions of law that Father’s
parental rights with respect to another child have been terminated involuntarily, and
that Father lacks the ability or willingness to establish a safe home. See In re V.L.B.,
168 N.C. App. 679, 684, 608 S.E.2d 787, 791 (2005) (holding that the trial court did
not err by concluding that respondents lacked the ability to establish a safe home
where, inter alia, the mother’s psychological evaluation revealed that she suffered
from “depression, high levels of anxiety and tension, a low frustration tolerance, poor
impulse control, and anger management difficulties”).
III. Conclusion
The trial court did not err by concluding that grounds existed to terminate
Father’s parental rights based upon neglect, dependency, and prior involuntary
termination of parental rights. Father does not challenge the trial court’s
dispositional determination that termination was in the child’s best interests.
Accordingly, we affirm the trial court’s order terminating Father’s parental rights.
AFFIRMED.
Judges GRIFFIN and STADING concur.
- 17 -