Opinion
No. COA10-1398
Filed 3 May 2011 This case not for publication
Appeal by Respondent-father from order entered 30 July 2010 by Judge Monica M. Bousman in Wake County District Court. Heard in the Court of Appeals 18 April 2011.
Office of the Wake County Attorney, by Assistant County Attorneys Lucy Chavis and Roger A. Askew, for Wake County Human Services. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for Respondent-father. Attorney Advocate Susan F. Vick for Guardian ad Litem.
Wake County No. 09 JA 35.
Factual and Procedural Background Respondent-father is the father of L.H. ("Lionel"), who was born on 17 August 2004. Respondent-father and Lionel's mother lived together with Lionel until early 2005, when Lionel's mother left Respondent-father and took Lionel with her.
"Lionel" is a pseudonym used to protect the juvenile's privacy.
In December 2008 and February 2009, Wake County Human Services ("WCHS") received reports that Lionel was not receiving proper care or supervision from his mother due to her history of substance abuse, homelessness, and mental health instability. Prior to WCHS' receipt of the February 2009 report, Respondent-father was incarcerated in the Buncombe County Detention Center.
On 23 February 2009, WCHS filed a petition alleging that Lionel was neglected and dependent. WCHS alleged that Lionel's mother had checked herself into Holly Hill Hospital and left Lionel in the care of friends. Those friends informed WCHS that Lionel's mother expected Lionel to stay with them for a week and then move to the maternal grandmother's home. WCHS further alleged that it "has information that the maternal grandmother has a history of substance abuse." On 23 February 2009, the Wake County District Court entered an order placing Lionel in nonsecure custody with WCHS.
On 31 March 2009, the trial court entered a consent order in which it adjudicated Lionel neglected and dependent. The trial court's order designated reunification as the permanent plan and ordered Lionel's mother to comply with a case plan. As to Respondent-father, the trial court ordered that he "shall, upon his release from incarceration, contact [WCHS] to developed [sic] an Out of Home Family Services plan."
On 18 December 2009, the trial court entered a review order in which it found that Lionel's mother had failed to comply with her case plan and that Respondent-father had made no contact with Lionel or WCHS since the petition was filed. The trial court concluded that further reunification efforts with the parents would be futile and ordered that the permanent plan for Lionel be changed to adoption.
WCHS filed a petition to terminate the parents' parental rights on 19 March 2010. As to both parents, WCHS alleged as grounds to terminate parental rights (1) that Lionel was a neglected juvenile, and (2) that the parents willfully left Lionel in foster care for more than twelve months without making reasonable progress toward correcting the conditions that led to the removal of Lionel from the home. Solely as to Respondent-father, WCHS also alleged that, prior to the filing of the petition, Respondent-father failed to establish paternity of, or to legitimate, Lionel, whom DSS alleged was born out of wedlock. As to Lionel's mother, WCHS alleged that Lionel had been placed in WCHS custody "for a continuous period of six [] months next preceding the filing of the [p]etition" and Lionel's mother "willfully failed for such period to pay a reasonable portion of the cost of care for the child although physically and financially able to do so."
This allegation of Lionel's illegitimacy notwithstanding, the evidence in the Record on Appeal and the transcripts indicates that Respondent-father had been married to Lionel's mother for two years prior to Lionel's birth. Further, there is no discussion of this allegation in the trial court's termination order.
On 11 June 2010, the trial court entered a permanency planning order in which it found that Lionel was doing well in his foster placement and that the consistency provided by his foster family had been "therapeutic for him." The trial court again ordered Respondent-father to contact WCHS and establish a case plan when he was released from incarceration.
The case came on for a termination hearing on 1 July 2010. Social worker Susan Ingle ("Ms. Ingle") testified about the parents' history with WCHS. Ms. Ingle testified that at the time WCHS began its involvement with the family, Respondent-father was awaiting trial in Buncombe County, but was not yet incarcerated. Respondent-father did not contact Lionel or WCHS at any time after Lionel was placed in WCHS custody or send him any financial support or gifts. Ms. Ingle testified that Respondent-father was eventually convicted of armed robbery and kidnapping and sentenced to a term of 10 to 12 years imprisonment.
Respondent-father testified that he was first incarcerated on 11 January 20 09, before WCHS took custody of Lionel, but that he had not seen Lionel since July 2008. Respondent-father further testified that he had accumulated five infractions during his incarceration. Respondent-father was currently permitted to work as a janitor and had previously worked in the kitchen, but he had not contributed any of the wages he earned in prison toward supporting Lionel. Respondent-father also testified that he participated in an "NA" group, but acknowledged that he had not taken parenting classes or anger management classes, although they were offered at the prison.
On 30 July 2010, the trial court entered an order terminating both parents' parental rights to Lionel. The trial court concluded that three grounds existed to terminate parents' parental rights: (1) neglect, (2) willful failure to make reasonable progress, and (3) willful failure to pay a reasonable portion of the cost of Lionel's care. The trial court also concluded that it was in Lionel's best interest to terminate parental rights. Respondent-father gave written notice of appeal.
This third ground for termination was alleged only as to Lionel's mother, and it would have been error for the trial court to terminate Respondent-father's parental rights on a ground not alleged against him in the petition. See In re S.R.G., 195 N.C. App. 79, 83, 671 S.E.2d 47, 50-51 (2009). However, because we determine that termination of Respondent-father's parental rights was supported on grounds of neglect, see infra, we conclude this erroneous determination as to Respondent-father is not error warranting reversal of the trial court's order. In re D.B., 186 N.C. App. 556, 561, 652 S.E.2d 56, 60 (2007), aff'd per curiam, 362 N.C. 345, 661 S.E.2d 734 (2008) (holding that "the order of termination will be affirmed if the court's conclusion with respect to any one of the statutory grounds is supported by valid findings of fact").
Discussion
On appeal, Respondent-father argues that the trial court erroneously determined that grounds existed to terminate his parental rights. Respondent-father further argues that he was denied effective assistance of counsel at the trial level. We address each of the arguments separately below.
I. Grounds for Termination
It is well established that termination of parental rights proceedings involve a two-stage process: (1) the adjudication stage, where the petitioner is required to prove the existence of grounds for termination by clear, cogent, and convincing evidence, and (2) the disposition stage, where the court's decision whether to terminate parental rights is discretionary. In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38, disc. review denied, 318 N.C. 283, 347 S.E.2d 470 (1986). On appeal, Respondent-father does not challenge the trial court's decision at disposition that it is in Lionel's best interest for Respondent-father's parental rights to be terminated. Rather, Respondent-father challenges the court's determination in the adjudication stage that grounds exist to terminate his parental rights. Our standard of review for the trial court's determination that grounds exist for termination is whether the trial court's findings of fact are based on clear, cogent, and convincing evidence and whether the findings 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).
In this case, the trial court determined that Respondent-father's parental rights should be terminated based on the following statutory grounds: (1) "[Respondent-father] willfully left [Lionel] in foster care for more than twelve (12) months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting the conditions which led to the removal of [Lionel;]" (2) "[Respondent-father] neglected [Lionel] within the meaning of [section] 7B-101(15), and it is probable that there would be a repetition of the neglect if [Lionel] was returned to the care of the parents[;]" and (3) "[Lionel] has been placed in the custody of [WCHS] and the parents, for a continuous period of six months next preceding the filing of the [p] etition [,] have willfully failed for such period to pay a reasonable portion of the cost of care for the child although physically and financially able to do so." Where, as here, a trial court concludes that parental rights should be terminated pursuant to several statutory grounds, "the order of termination will be affirmed if the court's conclusion with respect to any one of the statutory grounds is supported by valid findings of fact." In re D.B., 186 N.C. App. at 561, 652 S.E.2d at 60. Respondent-father argues that the trial court erred by finding the existence of each of these statutory grounds for termination. However, because we conclude that the court appropriately determined that Lionel is a neglected juvenile and there is a probability of repetition of neglect, we address Respondent-father's arguments only with respect to that statutory ground for termination.
Section 7B-1111(a)(1) provides that a court may terminate parental rights upon a finding that a parent has neglected a juvenile. N.C. Gen. Stat. § 7B-1111(a)(1) (2009). The juvenile shall be deemed to be neglected if the court finds the juvenile to be a neglected juvenile within the meaning of section 7B-101. Id. Section 7B-101(15) defines a neglected juvenile as follows:
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) (2009).
"In deciding whether a child is neglected for purposes of terminating parental rights, the dispositive question is the fitness of the parent to care for the child `at the time of the termination proceeding.'" In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (quoting In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984)).
Where [] a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect. This is because requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible.
In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (citations omitted). "[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. A trial court may terminate parental rights based upon a prior adjudication of neglect if "the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [his] parents." In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).
In this case, the trial court found that Lionel had previously been adjudicated a neglected juvenile and that "it is probable that there would be a repetition of neglect if [Lionel] was returned to the care of [Respondent-father]." This finding was based on the following relevant findings of fact:
12. That [Lionel was] adjudicated neglected by his parents by Consent Order on Adjudication and Disposition [] dated March 31, 2009.
. . . .
14. That the steps identified for [Respondent-father] to take before the [c]ourt would consider the return of the child to his care were as follows: upon release from incarceration, contact [WCHS] to develop an Out of Home Family Services plan.
. . . .
24. That at the time [Lionel] came into care, [Respondent-father] was charged with armed robbery and kidnap[p]ing. He was arrested shortly after the petition was filed and was subsequently convicted and sentenced to ten (10) to twelve (12) years in the North Carolina Department of Correction[]. His incarceration began on January 11, 2009, and his projected release date is July 3, 2019. [Respondent-father] testified that he has had five infractions since he has been incarcerated. [Respondent-father] testified that he, the mother, and [Lionel] lived with various relatives after he, the father, was released from training school. They would reside with a relative until they had a disagreement with that relative and would then leave and move to reside with a different relative. He has not had stable housing for the entire lifetime of [Lionel]. [Respondent-father] testified that the paternal grandmother last saw [Lionel] at an IHop [sic] in 2008.
25. [Respondent-father] did not correspond with [WCHS] or with [Lionel]. He did not send any gifts, cards, or letters to indicate his concern for [Lionel]. He did not telephone or otherwise inquire about the welfare of [Lionel]. [Respondent-father] last saw [Lionel] in July 2008.
. . . .
28. That [Respondent-father] is employed at a position in the prison at which he is housed and earns $2.90 per week. [Respondent-father] failed to pay any child support. [Respondent-father] testified that he uses the money he earns for his own needs at the prison.
29. That [Respondent-father] testified that he attends AA meetings at the prison but did not provide any documentation of that attendance. He testified that there are parenting classes and anger management classes at that facility but that he has not participated in either parenting classes or anger management classes.
Respondent-father first contends that the trial court's finding as to the probability of repetition of neglect was erroneous because portions of findings of fact 24 and 29 were unsupported by the evidence. Regarding number 24, Respondent-father argues that the finding that "[Respondent-Father] has not had stable housing for the entire lifetime of [Lionel]" was unsupported in that there was no evidence of Respondent-father's housing situation between the time when Lionel's mother took Lionel and left Respondent-father (approximately early 2005) and the time when Respondent-father was taken into custody in January 2009. Regarding number 29, Respondent-father argues that the finding that "[Respondent-father] testified that he attends AA meetings at the prison but did not provide any documentation of that attendance" was unsupported because the transcript reads that Respondent-father attended "NA" classes.
Assuming, without deciding, that Respondent-father is correct that those portions of findings of fact 24 and 29 are unsupported by the evidence, we nevertheless conclude that the remainder of the findings — which are undisputed by Respondent-father and, thus, binding on appeal, See In re S.D.J., 192 N.C. App. 478, 485-86, 665 S.E.2d 818, 823-24 (2008) (citing Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)) — sufficiently support the trial court's ultimate finding that Respondent-father's neglect of Lionel would probably be repeated if Lionel were returned to Respondent-father's care.
The trial court found that Respondent-father (1) last saw Lionel in July 2008; (2) has been incarcerated since January 2009 and expects to be released in July 2019; (3) has not sent any "gifts, cards, or letters to indicate his concern for [Lionel;]" (4) has not corresponded with WCHS or "otherwise inquire[d] about the welfare of [Lionel;]" and (5) is employed at the prison and earning $2.90 per week, but "testified that he uses the money he earns for his own needs at the prison." We conclude that these findings, which indicate that Respondent-father has made no effort to maintain a relationship with Lionel and that Respondent-father is unable to care for Lionel in the next 10 years, provide clear, cogent, and convincing evidence to support the trial court's finding that repetition of neglect is probable if Lionel is returned to Respondent-father. Furthermore, this finding, along with the trial court's finding that Lionel had previously been adjudicated neglected, provides clear, cogent, and convincing evidence to support the trial court's finding that "there are facts sufficient to warrant a determination that grounds exist for the termination of parental rights, said grounds as follows: . . . [t]hat [Respondent-father] neglected [Lionel] within the meaning of [section] 7B-101(15)[.]" Accordingly, Respondent-father's argument that the trial court erroneously determined that grounds existed for the termination of parental rights is overruled. We conclude that the trial court did not err in terminating Respondent-father's parental rights to Lionel.
Although we recognize Respondent-father's incarceration must have an appreciable impact on his ability to maintain a relationship with Lionel, we note that this Court has previously held that "[i]ncarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision." In re Yocum, 158 N.C. App. 198, 207-208, 580 S.E.2d 399, 405, aff'd per curiam, 357 N.C. 568, 597 S.E.2d 674 (2003). The evidence clearly shows Respondent-father has not attempted to maintain a relationship with Lionel, and the fact of his incarceration neither relieves him of his responsibility to maintain a relationship with his child, nor serves as evidence undermining the trial court's adequately supported finding that neglect would likely repeat if Lionel is returned to Respondent-father. See In re Bradshaw, 160 N.C. App. 677, 682, 587 S.E.2d 83, 86-87 (2003) (holding that the trial court properly concluded that a juvenile was neglected in spite of respondent-father's incarceration).
Respondent-father also argues that a court may not terminate parental rights on the ground of neglect unless there is a showing of "culpable" neglect by that parent, and that such a showing was not made in this case. This argument is unavailing in light of the findings by the court indicating that Respondent-father has made no attempt to contact or support Lionel in the last three years. These findings clearly show that Respondent-father's "individual conduct" supports the finding that Lionel is a neglected juvenile. See In re J.S., 182 N.C. App. 79, 86, 641 S.E.2d 395, 399 (2007) (stating that "proceedings to terminate parental rights focus on whether the parent's individual conduct satisfies one or more of the statutory grounds which permit termination"). Furthermore, to the extent Respondent-father argues that he was not "culpable" for the initial adjudication of neglect, we note, as did Respondent-father elsewhere in his brief, that in adjudication proceedings, in contrast to termination of parental rights proceedings, "the trial court is not required to determine the culpability of each parent as to the children." In re E.X.J., 191 N.C. App. 34, 45, 662 S.E.2d 24, 30 (2008), aff'd per curiam, 363 N.C. 9, 672 S.E.2d 19 (2009).
II. Ineffective Assistance of Counsel
Respondent-father next argues that the trial court's order should be reversed because he was denied effective assistance of counsel. Respondent-father contends that his trial counsel was ineffective because he (1) failed to "ensure [Respondent-father] was present in court for five of the eight hearings in this case[;]" and (2) "essentially admitt[ed] there were grounds upon which the court could terminate [Respondent-father's] parental rights."
"To prevail in a claim for ineffective assistance of counsel, respondent must show: (1) [the] counsel's performance was deficient or fell below an objective standard of reasonableness; and (2) [the] attorney's performance was so deficient [he] was denied a fair hearing." In re J.A.A., 175 N.C. App. 66, 74, 623 S.E.2d 45, 50 (2005).
Regarding his first argument that trial counsel failed to ensure his appearance at all the hearings, Respondent-father notes that it is "particularly troubling" and "problematic" that Respondent-father was not present at the 10 June and 1 December 2009 hearings before the trial court. Respondent-father contends that he was "denied a fair proceeding" based on the failure to ensure his presence at each hearing. We disagree.
This Court has previously held that "an incarcerated parent does not have an absolute right to be transported to a termination of parental rights hearing in order that he may be present under either statutory or constitutional law." In re Murphy, 105 N.C. App. 651, 652-53, 414 S.E.2d 396, 397, aff'd per curiam, 332 N.C. 663, 422 S.E.2d 577 (1992). While we recognize that the decision in Murphy was not made within the context of a claim of ineffective assistance of counsel, the decision is nonetheless instructive as it indicates that the mere absence of a parent at a stage in the parental rights termination process — including the termination hearing — does not, in and of itself, render the proceedings unfair.
In this case, Respondent-father was present for the 31 March 2009 proceeding that led to the consent order on adjudication and for the 1 July 2010 termination of parental rights hearing. Further, Respondent-father, while not personally present at each of the other hearings, was represented by counsel at those hearings. Because Respondent-father presents nothing on appeal to indicate how his counsel's representation was ineffective in Respondent-father's absence, we conclude that Respondent-father received effective assistance of counsel at the hearings conducted in his absence.
Aside from his mere absence at several hearings, the only deficiency in representation that Respondent-father argues on appeal is counsel's closing argument at the termination hearing a hearing at which Respondent-father was present.
Respondent-father argues that trial counsel was ineffective in this regard because counsel "essentially admitt[ed]" that grounds existed to terminate his parental rights by arguing at the close of the adjudication stage, "Your Honor, for the record, I would like to ask that you would not terminate [Respondent-father's] rights; and I will leave it at that, Your Honor." While we acknowledge that the purpose of the adjudication stage is to determine whether grounds exist to terminate parental rights and not to actually terminate those rights, we cannot agree with Respondent-father that trial counsel's argument was a "tacit admission that a ground or grounds existed to terminate [Respondent-father's] parental rights."
Nevertheless, even assuming trial counsel's closing argument was in some way deficient, Respondent-father fails to convince this Court that the deficiency denied Respondent-father a fair hearing. At the termination hearing, trial counsel cross-examined the only witness offered by WCHS at the adjudication phase and elicited Respondent-father's testimony on his own behalf. Finally, we note that (1) there was plenary evidence to support the conclusion that at least one ground existed to terminate Respondent-father's parental rights, and (2) much of the evidence supporting that conclusion came from Respondent-father's own testimony. Accordingly, we conclude that trial counsel's representation was vigorous and zealous, and we decline to hold that Respondent-father was prejudiced in any way by his counsel's representation. Cf. In re Dj.L., 184 N.C. App. 76, 86, 646 S.E.2d 134, 141 (2007) (noting that "alleged deficiencies did not deprive the respondent of a fair hearing when the respondent's counsel vigorously and zealously represented her, was familiar with her ability to aid in her own defense, as well as the idiosyncrasies of her personality, and the record contain[ed] overwhelming evidence supporting termination" (bracket in original; internal quotation marks omitted)). The order of the trial court terminating Respondent-father's parental rights to Lionel is
AFFIRMED.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).