In re K.A.D. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-407
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
IN THE MATTER OF:
K.A.D., Jackson County
Minor Child No. 05 JT 28
Appeal by Respondent mother from order entered 13 January
2014 by Judge Roy Wijewickrama in Jackson County District Court.
Heard in the Court of Appeals 18 August 2014.
Mary G. Holliday for Petitioner-Appellee Jackson County
Department of Social Services.
Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender J. Lee Gilliam for Respondent-Appellant
mother.
Troutman Sanders LLP, by Gavin B. Parsons, Raleigh, for
guardian ad litem.
DILLON, Judge.
Respondent mother appeals from the order terminating her
parental rights to the juvenile K.A.D, contending the trial
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court erred in concluding two grounds existed to terminate her
parental rights and in determining it was in the juvenile’s best
interests to terminate her parental rights. We affirm.
The history of social services’ involvement with the
juvenile’s parents dates back to 1999. The Jackson County
Department of Social Services (“DSS”) first intervened on behalf
of the juvenile K.A.D. in September of 2004 after receiving a
report of a dispute between the parents that resulted in the
father abandoning Respondent by the side of a highway. When
police assisted Respondent, she did not know where the juvenile
was and admitted she had been using drugs. Both parents
continued using drugs after this incident.
On 7 June 2005, DSS filed a petition alleging the juvenile
was abused and neglected. On 16 September 2005, the trial court
entered an order adjudicating the juvenile neglected and placed
the juvenile in the custody of her paternal step-grandmother.
By a consent order entered 20 April 2006, the parents regained
custody of all three of their children, including the juvenile.
The juvenile resided with the parents from 2006 to 2011.
In February and March of 2011, DSS received reports that
the parents’ problems with domestic violence and drug abuse had
resurfaced. On 11 March 2011, the juvenile and one of the
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parents’ other children were placed in kinship care. DSS
substantiated the reports of domestic violence and substance
abuse on 15 March 2011. On 19 April 2011, the parents agreed to
a Family Services Agreement requiring them to provide safe and
stable housing for the children and a sober adult caretaker at
all times, to abstain from engaging in physical violence in the
presence of the children, to participate in substance abuse
treatment, and to allow DSS to conduct home visits. The parents
nonetheless continued to engage in domestic violence and
substance abuse, and Respondent violated her probation. The
juveniles were placed in non-secure custody.
On 20 September 2011, the trial court entered a consent
order adjudicating the juvenile and the other children
neglected. At disposition, the court ordered Respondent to
submit to drug screens and refrain from substance abuse; allow
DSS into her home; submit to mental health and substance abuse
assessments and follow any recommendations; complete parenting
classes; participate in the juveniles’ therapy and counseling as
requested; refrain from engaging in domestic violence; maintain
adequate housing and income; and participate in family
counseling, visitation following her release from prison, and
intensive home services.
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The juvenile and the other two children were placed in a
trial home placement, which was disrupted when the parents
resumed using controlled substances and engaging in domestic
violence. After a 14 February 2013 hearing, the permanent plan
for the juvenile was changed to adoption. On 26 April 2013, DSS
filed a petition to terminate Respondent’s parental rights based
on neglect (N.C. Gen. Stat. § 7B-1111(a)(1) (2013)) and willful
failure to make reasonable progress (N.C. Gen. Stat. § 7B1-
1111(a)(2) (2013)).
The matter came on for hearing on 18 November 2013. On 13
January 2014, the trial court entered an order terminating
Respondent’s parental rights. The trial court concluded that
the juvenile was neglected, Respondent had failed to make
reasonable progress, and termination of Respondent’s parental
rights was in the juvenile’s best interests. Respondent now
appeals.
In her first two arguments, Respondent challenges the trial
court’s conclusions that grounds existed to terminate her
parental rights pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1) and
(2). At the adjudicatory stage of a termination of parental
rights hearing, the burden is on the petitioner to prove by
clear, cogent, and convincing evidence that at least one ground
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for termination exists. N.C. Gen. Stat. § 7B-1109(f) (2013); In
re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908
(2001). Our review on appeal is limited to determining whether
clear, cogent, and convincing evidence exists to support the
findings of fact, and whether the findings of fact support the
conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536
S.E.2d 838, 840 (2000), appeal dismissed, disc. review denied,
353 N.C. 374, 547 S.E.2d 9 (2001).
“When the trial court is the trier of fact, the court is
empowered to assign weight to the evidence presented at the
trial as it deems appropriate.” In re Oghenekevebe, 123 N.C.
App. 434, 439, 473 S.E.2d 393, 397 (1996). “[F]indings of fact
made by the trial court . . . are conclusive on appeal if there
is evidence to support them.” In re H.S.F., 182 N.C. App. 739,
742, 645 S.E.2d 383, 384 (2007) (internal marks omitted).
“[W]here no exception is taken to a finding of fact by the trial
court, the finding is presumed to be supported by competent
evidence and is binding on appeal . . . .” In re S.D.J., 192
N.C. App. 478, 486, 665 S.E.2d 818, 824 (2008) (internal marks
and citation omitted).
Although the trial court concluded two grounds existed to
terminate Respondent’s parental rights, we find it dispositive
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that the evidence supports termination of her parental rights
based on neglect. See In re Humphrey, 156 N.C. App. 533, 540-
41, 577 S.E.2d 421, 426-27 (2003) (finding only one statutory
ground necessary to support termination of parental rights).
N.C. Gen. Stat. § 7B-101(15) (2013) defines a neglected
juvenile as one “who does not receive proper care, supervision,
or discipline from the juvenile’s parent, guardian, custodian,
or caretaker . . . .” See also N.C. Gen. Stat. § 7B-1111(a)(1)
(2013) (providing for the termination of parental rights based
on neglect).
“Neglect must exist at the time of the termination hearing
[.]” In re C.W. & J.W., 182 N.C. App. 214, 220, 641 S.E.2d 725,
729 (2007). However, where “the parent has been separated from
the child for an extended period of time, the petitioner must
show that the parent has neglected the child in the past and
that the parent is likely to neglect the child in the future.”
Id. Even then, “[i]t is not essential that there be evidence of
culpable neglect following the initial adjudication.” In re
Caldwell, 75 N.C. App. 299, 302, 330 S.E.2d 513, 516 (1985).
Our Supreme Court has held:
[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
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parental rights. . . . However, termination
of parental rights for neglect may not be
based solely on conditions which existed in
the distant past but no longer exist. . . .
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.
In re Manus, 82 N.C. App. 340, 348, 346 S.E.2d 289, 294 (1986)
(internal marks and citations omitted).
In the present case, the trial court found the juvenile had
previously been adjudicated neglected. Thus, the issue on
appeal is whether its findings of fact support its conclusion
that neglect was likely to be repeated in the future.
Respondent contends that the trial court’s findings of fact
address conditions only as they existed in the distant past. We
disagree.
The trial court found that Respondent had failed to address
the domestic violence and substance abuse issues that instigated
DSS’s involvement with the family. While acknowledging that
Respondent had made some progress on parts of her case plan, the
trial court cited numerous instances where the juvenile was
exposed to or affected by domestic violence between the parents,
as well as Respondent’s repeated failure to appear for drug
screens, one refusal to submit to a drug screen, and two
instances where drug screens yielded positive results, in
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violation of the 20 September 2011 consent order. The trial
court also made findings describing Respondent’s unstable
housing situation and her failure to secure steady employment.
In support of her argument that the trial court’s findings
only address the conditions as they existed in the distant past,
Respondent relies on In re C.C. & J.C., 173 N.C. App. 375, 618
S.E.2d 813 (2005) and In re G.B.R. __ N.C. App. __, 725 S.E.2d
387 (2012). In those cases the trial court’s findings only
addressed behavior that took place years prior to the
termination hearing. See G.B.R., __ N.C. App. at __, 725 S.E.2d
at 392-93; C.C. & J.C., 173 N.C. App. at 382, 618 S.E.2d at 818.
In the present case, the trial court’s findings addressed
Respondent’s specific acts and omissions as of May 2013, just a
few months prior to the termination hearing. Moreover, the
social worker’s testimony at the termination hearing tended to
show that Respondent avoided contact with DSS between June and
October of 2013, just prior to the termination hearing, limiting
the availability of any testimony regarding her behavior during
the months leading up to the hearing. Accordingly, we hold that
the evidence supports the trial court’s findings of fact which,
in turn, support the trial court’s conclusion that the neglect
was likely to be repeated.
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Respondent next contends the trial court abused its
discretion in concluding that termination of parental rights was
in the juvenile’s best interests. Rather than challenging the
trial court’s findings of fact, Respondent instead asserts that
the trial court made its findings under a misapprehension of
law, rendering its decision an abuse of discretion. We
disagree.
Once the trial court has determined that a ground for
termination exists, it moves to the disposition stage,
determining whether termination is in the best interests of the
juvenile. N.C. Gen. Stat. § 7B-1110(a) (2013). The trial court
must consider the following factors in determining the best
interests of the juvenile:
(1) The age of the juvenile.
(2) The likelihood of adoption of the
juvenile.
(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.
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Id. The trial court must make written findings addressing the
relevant factors. In re J.L.H., __ N.C. App. __, __, 741 S.E.2d
333, 337-38 (2012). We review the trial court’s decision for an
abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564
S.E.2d 599, 602 (2002).
In the present case, the trial court made detailed findings
of fact addressing all of the relevant statutory factors.
Respondent concedes as much in her brief. Respondent
nevertheless points to the phrasing of one of the trial court’s
conclusions of law, claiming it demonstrates that the trial
court applied an incorrect legal standard:
3. That it is in the best interest of the
Juvenile for the parental rights of the
Respondent Mother to be terminated. The
Court can find no reason that the best
interests of the Juvenile require that
Respondent Mother’s parental rights not be
terminated.
(emphasis added). The second sentence of this conclusion is in
substance a restatement of the first, and “[w]e will not presume
error based on an [isolated] errant sentence,” regardless.
Green v. Kelischek, __ N.C. App. __, __, 759 S.E.2d 106, 114
(2014). Thus, the trial court’s phrasing does not show that it
misapprehended the law, particularly when read in the context of
the rest of the dispositional portion of the termination order.
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Accordingly, we find no abuse of discretion in the trial court’s
decision to terminate Respondent’s parental rights.
AFFIRMED.
Judges HUNTER, Robert C. and DAVIS concur.
Report per Rule 30(e).