In re T.M.M. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA13-855
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
IN THE MATTER OF: New Hanover County
Nos. 11 JT 128, 130
T.M.M., N.D.M.
Appeal by respondent-mother from orders entered 15 November
2012 and 22 May 2013 by Judge J.H. Corpening, II, in New Hanover
County District Court. Heard in the Court of Appeals 27 January
2014.
Staff Attorney Gail Carelli for petitioner-appellee New
Hanover County Department of Social Services.
Richard Croutharmel for respondent-appellant mother.
Troutman Sanders LLP, by Jennifer M. Hall, for guardian ad
litem.
BRYANT, Judge.
Respondent-mother appeals from the trial court’s 22 May
2013 order terminating her parental rights to T.M.M. and N.D.M.,
as well as the trial court’s 16 November 2012 permanency
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planning order ceasing reunification efforts. We affirm in part
and dismiss in part.
On 9 May 2011, the New Hanover County Department of Social
Services (“DSS”) obtained nonsecure custody of T.M.M. (“Tom”),
N.D.M. (“Nancy”) and C.D.M. (“Cody”) and filed a juvenile
petition alleging abuse and neglect.1 DSS filed an amended
petition on 17 May 2011. The petition alleged that one-year-old
Cody was presented to his daycare with cuts and bruises on his
face and lip, as well as hand-shaped bruising on his back and
buttocks. Neither respondent, nor Cody’s father (“Herman”),
offered a plausible explanation for the injuries. The petitions
further alleged that based on the injuries sustained by Cody,
Tom and Nancy were living in an environment injurious to their
welfare and not receiving proper care or supervision.
In an order entered on 21 September 2011, the trial court
adjudicated all three children neglected, based on respondent’s
stipulation. The trial court found as fact the allegations
contained in the petitions and continued custody of the children
with DSS.
In a permanency planning order entered 16 November 2012,
the trial court relieved DSS of reasonable reunification efforts
1
Tom, Nancy and Cody are pseudonyms used to protect the
identities of the juveniles pursuant to N.C.R. App. P. 3.1(b).
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and changed the permanent plan for the children to adoption.
The trial court found that the children had “been in foster care
for seventeen (17) months without any parent demonstrating a
consistent long-term commitment to addressing the issues which
caused the children to come into the Department’s custody[.]”
The court further found that during a trial home placement with
Tom, DSS received a report that Herman was back in respondent’s
home; that respondent admitted he had been in her home on three
occasions; that Tom had witnessed domestic violence between
Herman and his mother; and that by exposing Tom to Herman,
respondent acted in contravention of prior court orders.
On 14 December 2012, DSS filed a petition to terminate
respondent’s parental rights to Tom and Nancy, alleging neglect
as the sole ground for termination. See N.C. Gen. Stat. § 7B-
1111(a)(1) (2011). Prior to the petition, respondent and Herman
relinquished their parental rights to Cody. The trial court
conducted a termination of parental rights hearing on 22 and 25
April 2013. In an order entered on 22 May 2013, the trial court
found the existence of neglect as a ground for termination. The
trial court also concluded that it was in the juveniles’ best
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interest to terminate respondent’s parental rights.2 Respondent
appeals.
I.
In her first argument on appeal, respondent challenges the
trial court’s cessation of reunification efforts in its 16
November 2012 permanency planning order. Because respondent has
not properly preserved this issue for appeal, we dismiss her
argument.
Pursuant to N.C. Gen. Stat. § 7B-507(c), “[a]t any hearing
at which the court orders that reunification efforts shall
cease, the affected parent, guardian, or custodian may give
notice to preserve the right to appeal that order in accordance
with G.S. 7B-1001.” N.C.G.S. § 7B-507(c) (2013). Furthermore,
such an order may be appealed only if it is “properly preserved”
in accordance with N.C. Gen. Stat. 7B-1001(a)(5).
Here, respondent failed to give notice to preserve her
right to appeal the order ceasing reunification efforts. She
neither objected at the hearing, nor filed a written notice of
intent to appeal the order at any time during the pendency of
the case. Because respondent failed to comply with the
statutory requirements of N.C.G.S. §§ 7B-507(c) and 1001(b)(5),
2
The trial court also terminated the parental rights of Tom and
Nancy’s fathers, but they are not parties to this appeal.
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she has not preserved this issue for appellate review. In re
S.C.R., 198 N.C. App. 525, 530, 679 S.E.2d 905, 908 (2009)
(declining to address the respondent’s challenge to an order
ceasing reunification efforts where the respondent failed to
give notice of intent to preserve his right to appeal in
accordance with a prior version of the statute).
II.
In her second argument on appeal, respondent challenges the
trial court’s termination of her parental rights based on
neglect. North Carolina General Statutes, section 7B-1111
provides, in pertinent part:
(a) The court may terminate the parental
rights upon a finding of one or more of
the following:
(1) The parent has abused or neglected
the juvenile. The juvenile shall
be deemed to be abused or
neglected if the court finds the
juvenile to be an abused juvenile
within the meaning of G.S. 7B-101
or a neglected juvenile within the
meaning of G.S. 7B-101.
N.C.G.S. § 7B-1111(a)(1) (2013). Neglect, in turn, is defined
as follows:
Neglected juvenile. — 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
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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) (2013).
The following findings of fact address this ground for
termination:
6. That the Department first became
involved with [respondent] due to her
child [Cody] presenting to daycare with
intentionally inflicted bruises on his
face, thigh, and buttocks. Neither
[respondent] or [Cody’s] father
[Herman] could offer a plausible
explanation as to how those bruises
occurred. All three [] children were
adjudicated neglected on August 24,
2011. Both [Herman] and [respondent]
subsequently relinquished their
parental rights to [Cody] on October
15, 2012 and October 31, 2012
respectively.
7. That [Tom] has been in therapy with
Shelley Chambers continuously since
October 2012. He is diagnosed with
Adjustment Disorder with mixed emotions
and conduct, Post Traumatic Stress
Disorder, and is a Child Victim of
Abuse. That he has had multiple foster
care placements due to severe
behavioral problems. That he suffers
from anxiety, guilt and trauma related
to witnessing domestic violence in the
home. That he has disclosed to
therapist Chambers that he witnessed
his mother being assaulted by [Herman]
on more than one occasion. That he
remains fearful of [Herman]. That
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exposure to [Herman] is traumatizing to
him, and is a significant trigger to an
adverse emotional reaction and
regression in behavior. That he has
also had some emotional conflict in
attaching to his current foster parent,
as his mother has made him feel
disloyal if he forms a bond with his
foster mother. That he has expressed
feeling safe in his current foster
placement.
8. That [Herman] did assault [respondent]
on more than one occasion, that he has
left visible marks including bruises
and scratches, and that he has
assaulted [respondent] in the presence
of [Tom] on more than one occasion.
That this Court finds [respondent’s]
often contradictory testimony to the
contrary, in light of all the evidence
presented, to lack credibility.
9. That notwithstanding the completion of
parenting classes, empowerment classes,
and individual therapy for over a year,
[respondent] has yet to demonstrate any
understanding of the effects of
domestic violence on her children.
That the testimony of her therapist and
her own testimony illustrates to this
Court that [respondent] does not
understand the cycle of abuse or how it
pertains to her. That during a trial
home placement of [Tom] in June and
July of 2012, [respondent] sought out
[Herman] and invited him to her home on
more than one occasion. That
[respondent’s] pattern of engaging in
abusive relationships and the failure
to understand how to avoid them poses a
significant and ongoing risk of neglect
to her children should they be returned
to her care.
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We review the trial court’s order to determine “whether the
trial court’s findings of fact were based on clear, cogent, and
convincing evidence, and whether those findings of fact support
a conclusion that parental termination should occur[.]” In re
Oghenekevebe, 123 N.C. App. 434, 435—36, 473 S.E.2d 393, 395
(1996) (citation omitted). Respondent specifically challenges
portions of finding of fact numbers 7 through 9. The remaining
findings of fact remain uncontested because respondent does not
challenge them. See In re M.D., 200 N.C. App. 35, 43, 682
S.E.2d 780, 785 (2009). We address each challenged finding in
turn.
Respondent disputes the portion of finding number 7 in
which the trial court found that Tom’s exposure to Herman is
traumatizing and is a significant trigger to an adverse
emotional reaction and regression in behavior. Respondent
essentially argues that this finding is not supported by the
testimony of Tom’s therapist. We disagree. Shelley Chambers, a
licensed clinical social worker, testified at the termination
hearing. Chambers was Tom’s therapist and had seen him 17 times
since October 2012. Chambers testified that Tom was “diagnosed
with an adjustment disorder with mixed disturbance of emotions
and conduct, and he has symptoms as well with post-traumatic
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stress, and he’s a child victim of abuse.” Chambers elaborated
on Tom’s diagnoses, indicating that he was holding onto the
memories of domestic violence, that his behavioral issues were
related to post-traumatic stress, and that there were certain
triggers to his behaviors. Chambers also provided the following
testimony:
Q. Could you comment on what the impact on
[Tom] might be if he were returned home
to his mother and she did engage in
another -- if [Herman] did come around
or another person who was abusive
towards her was around?
A. Well, it could -- it could stunt his
emotional growth. You know, due to the
experience that he’s had very early,
he’s already, you know, at great risk
for anxiety and depression. So,
encountering another violent
relationship could be very consuming to
him and it could put a lot of energy
into protecting his mom. It could
impede his social, emotional, and
academic success for sure.
. . .
Q. And just to be clear, if [Tom] were
ever exposed to [Herman], even just to
see him, whether or not he was behaving
in a violent manner towards his mother,
would that be a traumatizing thing for
him?
A. It would be a very significant trigger
for a traumatic reaction.
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This testimony directly supports the finding disputed by
respondent. We therefore reject her argument to the contrary.
In finding of fact number 8, the trial court found that
Herman assaulted respondent in the presence of Tom on more than
one occasion and that respondent’s testimony to the contrary
lacked credibility. Respondent appears to challenge the trial
court’s finding regarding her credibility. However, it is not
our duty to re-weigh the credibility of the witnesses and
substitute our judgment for that of the trial court. See In re
Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985) (“The
trial judge determines the weight to be given the testimony and
the reasonable inferences to be drawn therefrom. If a different
inference may be drawn from the evidence, he alone determines
which inferences to draw and which to reject.”). We therefore
reject respondent’s argument.
In finding of fact number 9, respondent challenges the
trial court’s finding that she failed to demonstrate an
understanding of the effects of domestic violence. She disputes
this finding for a number of reasons: she completed domestic
violence classes, entered into a safety plan, and has developed
relationships in the community; she testified that she did not
understand the implications of allowing Herman into her home and
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that it would not happen again; that the finding was based on
events that happened in the summer of 2012; and that DSS’s
evidence was speculative. We disagree. Several of respondent’s
arguments overlook the crux of the finding: that she failed to
demonstrate an understanding of the effects of domestic violence
despite having completed several components of her case plan.
Furthermore, after reviewing the record, we find the trial
court’s finding to be supported by the evidence. The evidence
shows that Herman was physically abusive to respondent, and that
Tom witnessed at least some of the domestic violence.3
Respondent admitted that she allowed Herman in her home in the
summer of 2012 on at least three occasions. Furthermore,
respondent’s foster mother testified that Herman was not
respondent’s first abusive relationship. Tom’s father was also
violent towards respondent. Respondent’s therapist, Dawn
Richard, testified that she was aware of both of respondent’s
abusive relationships. Although she and respondent discussed
Herman, Richard found out that Herman was back in respondent’s
home only after Tom was removed from the trial placement.
3
Respondent also asserts that the child protective services
(“CPS”) investigator’s testimony on this matter is impermissible
hearsay. Respondent, however, offers no argument or citation
to legal authority in support of her assertion. We therefore
decline to address this contention. See N.C.R. App. P. 28(6).
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Richard testified that the incident concerned her “[b]ecause he
wasn’t supposed to be coming around because of the concern of
having [Herman] around [respondent] due to the history of
domestic violence and because of the concern of having [Tom]
exposed to the domestic violence.”
Richard confirmed that she discussed with respondent the
effect of having Herman around Tom. Nonetheless, when asked if
respondent understood the consequences, Richard testified as
follows:
Q. Do you feel that [respondent] ever
really demonstrated to you a true
understanding of the impact of having
[Herman] around [Tom] would have on
[Tom]? Did she -- did she really under
-- did she ever get that? Do you feel
like she got that?
A. I don’t think so. I think -- I think
she wanted to at times, but I don’t --
I don’t think she really understood how
that correlated.
Q. And with respect to -- I know -- when
was the last interaction you had or the
last therapy you had with [respondent]?
A. Late October of 2012.
Q. And at that time would you say that
there was still a risk of her
potentially engaging in abusive
relationships?
A. Yes.
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Additionally, Maureen Murphy, the DSS social worker assigned to
respondent’s case, testified that respondent had been making
progress on her case plan but that she did not understand the
impact of domestic violence on her children absent physical
harm. We find the foregoing evidence sufficient to support the
trial court’s finding.
Respondent also challenges the trial court’s conclusion of
law in which it found neglect as a ground for termination. It
is well-established that “[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) (citation
omitted); see also In re Ballard, 311 N.C. 708, 715, 319 S.E.2d
227, 232 (1984) (“The determinative factors must be the best
interests of the child and the fitness of the parent to care for
the child at the time of the termination proceeding.”).
However, where the child is not in the custody of the parents at
the time of the termination hearing, trial courts generally
“employ a different kind of analysis to determine whether the
evidence supports a finding of neglect.” In re Shermer, 156
N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (citation
omitted). Because the determinative factor is the parent’s
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ability to care for the child at the time of the hearing, we
previously have explained that “requiring the petitioner in such
circumstances to show that the child is currently neglected by
the parent would make termination of parental rights
impossible.” Id.Under such circumstances, “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.” Ballard, 311 N.C. at 713—14, 319 S.E.2d at 231.
However, the prior adjudication, standing alone, does not
support termination based on neglect. “The 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 (citation omitted).
Thus, a trial court may find either that neglect existed at the
time of the hearing or “that grounds for termination exist upon
a showing of a ‘history of neglect by the parent and the
probability of a repetition of neglect.’” In re L.O.K., 174
N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (citation
omitted).
Respondent argues that the trial court failed to specify
the time period in which Tom observed domestic violence between
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his mother and Herman.4 Therefore, respondent argues, it is
unclear as to whether the trial court relied solely on the
underlying adjudication of neglect instead of properly
considering evidence of changed circumstances. We are not
persuaded by respondent’s argument. The trial court concluded
that respondent “[has] neglected the children and that there is
ongoing neglect and a likelihood of repetition of neglect[.]”
Thus, the trial court’s conclusion of law explicitly shows that
it did not base its decision on the past adjudication of
neglect. Furthermore, the findings of fact show that the
likelihood of repetition was based on the events that happened
after Tom’s trial placement in the summer of 2012 — nearly a
year after the adjudication. Lastly, we must again point out
that respondent’s argument overlooks the root of the trial
court’s conclusion. Respondent admitted that she allowed Herman
into her home during Tom’s trial placement, and that Tom
witnessed domestic violence. Regardless of whether the domestic
violence occurred in the summer of 2012 or prior to the
children’s removal, it is clear that Tom was exposed to domestic
4
Respondent also raises this same argument in her challenges to
the findings of fact. Because we are addressing it in
connection with her challenge to the trial court’s conclusion of
law, we need not address it in connection with each of the
challenged findings of fact.
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violence and witnessed Herman abuse his mother. The findings
also establish that Tom’s exposure to Herman was emotionally
damaging. Because respondent readily invited Herman into her
home, the trial court was justified in concluding that a
repetition of neglect was likely in the future. We therefore
hold that the trial court’s conclusion of neglect was supported
by its findings of fact, and we affirm the trial court’s order
terminating respondent’s parental rights.
Affirmed in part; dismissed in part.
Judges HUNTER, Robert C., and STEELMAN concur.
Report per Rule 30(e).