Opinion
No. COA12–1555.
2013-06-18
In the Matter of A.A.J., S.D.D.
Gail E. Carelli for petitioner-appellee. W. Michael Spivey for respondent-appellant mother.
Appeal by respondents from orders entered 27 February 2012 and 15 October 2012 by Judge J.H. Corpening, II in New Hanover County District Court. Heard in the Court of Appeals 9 May 2013. Gail E. Carelli for petitioner-appellee. W. Michael Spivey for respondent-appellant mother.
Peter Wood for respondent-appellant father.
Kerner Law, by Robert C. Kerner, Jr., for guardian ad litem-appellee.
GEER, Judge.
Respondent parents appeal from orders ceasing reunification efforts and terminating their parental rights to their children “Alice” and “Stacie.” We hold that the trial court made the necessary findings of fact to cease reunification efforts, that grounds existed to terminate respondents' parental rights, and that the trial court did not abuse its discretion in terminating respondents' parental rights given the facts of this case.
The pseudonyms “Alice” and “Stacie” are used throughout this opinion to protect the identity of the children and for ease of reading.
Facts
Alice was born to respondents on 28 October 2006. On 18 December 2006, respondents' parental rights to a daughter were terminated by the superior court of New Jersey, Chancery Division—Family Part, County of Essex. Stacie was born on 4 October 2008.
On 5 May 2010, New Hanover County Department of Social Services (“DSS”) became involved with respondents' family in North Carolina due to concerns about substance abuse and domestic violence. Respondent father had been arrested and charged with assault as a result of a domestic violence incident between him and respondent mother. DSS created a safety plan and a court order was entered prohibiting respondent father from being in the home. On 24 May 2010, a DSS social worker found respondent father hiding in a closet in the family's home. Although the children were not present, DSS obtained a non-secure custody order for the children, and the children were removed from the home on 25 May 2010.
DSS filed a juvenile petition alleging that the children were neglected. On 29 July 2010, respondents stipulated to an adjudication of neglect based upon the allegations that respondent father was in the family's home after the assault charge. The court ordered respondents to complete substance abuse assessments and follow all recommendations; to complete parenting classes; and to comply with domestic violence services, including the Domestic Violence Offender Program for respondent father and Empowerment Groups for respondent mother.
At a permanency planning review hearing on 11 January 2012, DSS asked the court to cease reunification efforts. The court authorized DSS to cease efforts at reunification due to respondents' conduct and their lack of progress on their case plans. Respondents had been living with respondent father's paternal aunt, Jessie Smith. Ms. Smith had them evicted when they returned to the house one night intoxicated and would not leave when Ms. Smith asked them to do so. Ms. Smith ultimately had to call law enforcement. In addition, at the time of the permanency planning review hearing, neither parent had been employed since their children had been removed from the home.
On 9 March 2012, DSS filed a petition to terminate respondents' parental rights. DSS alleged the following grounds: neglect, willfully leaving the children in foster care for more than 12 months without making reasonable progress in correcting the conditions leading to the children's removal, willful failure to pay child support by respondent mother, and prior termination of parental rights with respect to another child and a lack of ability or willingness to establish a safe home.
The trial court entered an order on 15 October 2012 concluding that all the grounds alleged by DSS existed except for the failure to pay child support. With respect to disposition, the court found that while the children had a bond with their parents, neither parent had shown they could protect the children from neglect. The children had been in the same foster home since May 2010, were bonded to the foster mother, and the foster mother wanted to adopt them. The court found that termination of parental rights would, therefore, aid in the accomplishment of the permanent plan of adoption. The court then found that termination of parental rights would be in the best interests of the children. Respondents timely appealed to this Court from the order ceasing reunification efforts and the order terminating parental rights.
I
Respondents first challenge the trial court's decision to cease DSS' efforts at reunification. “This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court's conclusions, and whether the trial court abused its discretion with respect to disposition.” In re C.M., 183 N.C.App. 207, 213, 644 S.E.2d 588, 594 (2007).
N.C. Gen.Stat. § 7B–507 (b)(1) (2011) provides that a trial court may order a cessation of reunification efforts “if the court makes written findings of fact that ... [s]uch efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time.” This Court has previously held that the trial court must make a specific finding of fact regarding the futility of further efforts or the inconsistency of such efforts with the child's health, safety, and need for a permanent home. In re Weiler, 158 N.C.App. 473, 477–78, 581 S.E.2d 134, 137 (2003).
Although respondent mother contends that the trial court failed to make the findings of fact required by N.C. Gen.Stat. § 7B–507(b)(1), the trial court specifically found:
11. That [DSS] made reasonable efforts to reunify [Alice] and [Stacie] with their parents; however, pursuant to North Carolina General Statutes 7B–507, [DSS] is no longer required to make reasonable efforts in this matter to reunify this family as those efforts would clearly be futile and would be inconsistent with these children's health and safety, and need for a safe, permanent home within a reasonable amount of time.
This finding meets the requirements of N.C. Gen.Stat. § 7B–507(b)(1) that the trial court make “written findings of fact” regarding futility or inconsistency with the child's health, safety, and need for a permanent home.
Respondent mother's contention that the trial court's finding of fact is actually a conclusion of law, and required findings of fact to support it, is inconsistent with the statute and with this Court's prior holdings. See In re Weiler, 158 N.C.App. at 478, 581 S.E.2d at 137 (reversing order ceasing reunification efforts when “[t]he court found as fact neither that efforts toward reunification with respondent would be futile nor that such efforts would be inconsistent with the juveniles' health, safety, and need for a permanent home”).
Moreover, the trial court's findings regarding futility and inconsistency are supported by the court's other findings of fact. The court found that “the same issues that led to the removal of the children from the care of their parents persist today,” including concerns about alcohol use, a lack of stability in housing, and respondent father's failure to complete the required Domestic Violence Offender Program. The trial court further found that respondents “have failed to adequately address the conditions that caused the children to come into the custody of [DSS] some nineteen months ago.”
Respondent mother argues that the trial court should not have considered any issues other than domestic violence since that was the basis for the adjudication of neglect. In determining whether future reunification efforts would be futile or inconsistent with the children's health, safety, and need for a permanent home, however, the trial court was not limited to the parties' stipulation for the initial adjudication of neglect. Given the limited progress on respondents' case plan and the persisting concerns about stable housing, alcohol, and respondent father's failure to complete the domestic violence program, the trial court was entitled to find that further reunification efforts would be futile and would be inconsistent with the children's need for a safe, permanent home.
Respondents also challenge various findings of fact as unsupported by the evidence. Based on our review of the evidence, the trial court's findings are supported by testimony from the guardian ad litem, the DSS social worker, and their reports, or they amount to reasonable inferences drawn from the evidence. While respondents point to other evidence within the record supporting their position, the trial court is solely responsible for deciding questions of credibility and the weight to give the evidence.
Respondent father additionally argues that the trial court should have ordered guardianship rather than ceasing reunification efforts. The decision regarding which dispositional alternatives under N.C. Gen.Stat. § 7B–903 (2011) to adopt fall within the trial court's discretion. In re C.M., 183 N.C.App. at 213, 644 S.E.2d at 594. In support of his argument, respondent father relies exclusively on evidence that visits with the girls went well and general arguments regarding the benefits of guardianship.
Respondent father does not point to any evidence before the trial court of a viable candidate for guardian. Instead, the evidence indicates DSS made several unsuccessful attempts to find a guardian for Alice and Stacie with DSS, including contacting three of respondent father's relatives, none of whom proved to be a possible placement. Respondent father points to the foster mother, but cites no evidence that she was willing to be a guardian. We, therefore, hold that respondent father has failed to show that the trial court abused its discretion when deciding to cease reunification efforts rather than adopt guardianship as a permanent plan.
Finally, with respect to the permanency planning order, respondent mother argues that the trial court failed to comply with N.C. Gen.Stat. § 7B–907(b) (2011), which provides in pertinent part:
At the conclusion of the hearing, if the juvenile is not returned home, the court shall consider the following criteria and make written findings regarding those that are relevant:
(1) Whether it is possible for the juvenile to be returned home immediately or within the next six months, and if not, why it is not in the juvenile's best interests to return home;
(2) Where the juvenile's return home is unlikely within six months, whether legal guardianship or custody with a relative or some other suitable person should be established, and if so, the rights and responsibilities which should remain with the parents;
(3) Where the juvenile's return home is unlikely within six months, whether adoption should be pursued and if so, any barriers to the juvenile's adoption;
(4) Where the juvenile's return home is unlikely within six months, whether the juvenile should remain in the current placement or be placed in another permanent living arrangement and why;
(5) Whether the county department of social services has since the initial permanency plan hearing made reasonable efforts to implement the permanent plan for the juvenile;
(6) Any other criteria the court deems necessary.
Respondent mother argues that the trial court failed to make findings regarding why it was not in the best interests of the children to return home within the next six months, whether guardianship should be established, and whether any barriers to adoption existed.
We believe the trial court made adequate findings regarding why it was not in the best interests of the children to return to the custody of their parents within the next six months, including the instability of their housing, concerns about alcohol use, and respondent father's failure to complete the Domestic Violence Offender Program. No evidence of willing guardians was presented at the hearing, so guardianship was not a relevant criteria requiring findings of fact. Finally, the only “barrier to adoption” noted by respondent mother was the fact that the foster mother was not sure at that time whether she wanted to adopt the girls. While that fact might be a barrier to adoption by the foster mother, there was no evidence that any barrier existed to the girls being adopted as a general matter. The trial court, therefore, made adequate findings of fact under N.C. Gen.Stat. § 7B–907(b). Accordingly, we affirm the permanency planning order.
II
Respondents next challenge the trial court's order terminating their parental rights. Termination of parental rights involves a two-stage process. In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001). At the adjudicatory stage, “the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen.Stat. § 7B–1111 exists.” In re Anderson, 151 N.C.App. 94, 97, 564 S.E .2d 599, 602 (2002).
“If the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child.” Id. at 98, 564 S.E.2d at 602. The trial court's decision to terminate parental rights is reviewed under an abuse of discretion standard. In re Nesbitt, 147 N.C.App. 349, 352, 555 S.E.2d 659, 662 (2001). “ ‘An abuse of discretion occurs when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision.’ “ In re Robinson, 151 N.C.App. 733, 737, 567 S.E.2d 227, 229 (2002) (quoting Chicora Country Club, Inc. v. Town of Erwin, 128 N.C.App. 101, 109, 493 S.E.2d 797, 802 (1997)).
Findings of fact supported by competent evidence are binding on appeal even if evidence has been presented contradicting those findings. In re N.B., I.B., A.F., 195 N.C.App. 113, 116, 670 S .E.2d 923, 925 (2009). “Where 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.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Respondent mother challenges the sufficiency of the evidence to support the conclusion that grounds existed to terminate her parental rights. We first address neglect. N.C. Gen.Stat. § 7B–101(15) (2011) defines a neglected juvenile as:
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.
When, as here, the child was removed from the parent's home pursuant to a prior adjudication of neglect, “[t]he 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.” In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). In such cases, although “there is no evidence of neglect at the time of the termination proceeding ... parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to her parents.” In re Reyes, 136 N.C.App. 812, 815, 526 S.E.2d 499, 501 (2000).
Here, there was a past adjudication of neglect. Further, the trial court found: “[N]either Respondent-parent has been able to adequately address the causes of the neglect and their continued failure to do so indicate[s] the neglect of their children is ongoing and that there is a likelihood of repetition of neglect in the event the children [are] returned to the legal custody of either or both of them.”
In support of this ultimate finding, the trial court found “while the Respondent-parents completed some services [ordered at the initial dispositional hearing], concerns remain regarding domestic violence, substance abuse, and housing and employment instability.” The court found that “both Respondent-parents failed to complete substance abuse assessments despite referrals to Coastal Horizons for the same.” The court repeated that finding, stating that respondents “have failed to adequately address the issues which led to the removal of the children, those issues centering around domestic violence, substance abuse, the ongoing instability of their living arrangements and almost complete dependence upon others to provide for their basic needs.” The court also found that “in the twenty-two (22) months since [the children were removed], the parents have not complied with the Orders of the Court or their Family Services Case Plan to the degree that the Court could safely authorize unsupervised visitation, trial placement or reunification with either Respondent-parent.”
With respect to domestic violence, the court more specifically noted that respondent father took more than 14 months to complete the Domestic Violence Offender Program. Yet, respondent mother arrived at a visit in June 2012 with a bruise over her eye, and she gave “inconsistent and implausible accounts as to how she acquired the bruise.” The court found her “testimony to lack credibility with respect to the same.” The court also found that the guardian ad litem had experienced respondent father's anger and his propensity to blame others for his situation.
The court also made further findings related to housing and dependency on others. The court found:
5. That housing instability still remains a concern to this Court. That the Respondent-parents resided for a period of time with [respondent father's] paternal aunt, Jessie Smith. That Ms. Smith asked them to leave the home when they returned one night intoxicated, and law enforcement had to be called due to the Respondent-father's aggressive and belligerent behavior. That while in Ms. Smith's home, the Respondent-parents did not pay rent or contribute to household expenses in any way, though they testified that they did household chores and contributed food. That the Respondent-parents have a history of residing with various friends and relatives that have been willing to take them in. That the Respondent-parents currently reside in a home they do not own, and they do not have a lease or pay rent. That but for the kindness of their current landlord, they would be homeless.
These findings provide ample support for the trial court's determination that there was a likelihood of a repetition of neglect if the children were returned to respondent parents. Respondent mother, however, contends that the trial court erred in “lump[ing] her together with respondent father as if they were one entity instead of considering her progress and conduct separately.” Yet, respondent mother lived with respondent father, and the persistent problems with a lack of housing, lack of employment, substance abuse, and dependency on others applied equally to her.
Respondent mother also points to the fact that she was employed at Burger King at the time of the hearing. That employment was, however, only part time, and this employment—commenced only after cessation of reunification efforts—was her only employment during the nearly two years after her children were removed. The trial court was entitled to consider this to be inadequate employment for purposes of determining whether there was a probability of a repetition of neglect.
We disagree with respondent mother's characterization of the trial court's findings of housing and employment instability and dependency on others as inappropriate socio-economically based value judgments and “the same risk that all poor people” face. The question before the trial court was whether there was a probability that the children would again be neglected if returned to respondent mother. The fact that respondent mother had unstable housing, had only limited employment over nearly two years, and was dependent on the kindness of others for basic needs of living gives rise to a likelihood that respondent mother would not be able to care for her children if they were placed in her custody.
We, therefore, hold that the trial court did not err in determining that the ground of neglect existed with respect to respondent mother. On appeal, if this Court determines that there is at least one ground to support a conclusion that parental rights should be terminated, it is unnecessary to address the remaining grounds. In re Clark, 159 N.C.App. 75, 84, 582 S.E.2d 657, 663 (2003). Because respondent mother does not challenge the trial court's decision that termination of parental rights was in the children's best interests, we affirm as to respondent mother.
Respondent father concedes that grounds existed to terminate his parental rights. He argues, however, that the trial court abused its discretion in deciding that termination was in the children's best interests. He focuses on the bond between the parents and the children and argues that the trial court should have given paramount importance to that bond and ordered guardianship rather than termination of parental rights. It was up to the trial court to decide how to weigh the factors mandated by our legislature, and this Court may not accept respondent father's invitation that we substitute our judgment for the trial court.
Given that the children could not be returned to the parents and the absence of evidence of any willing and able potential guardian, we cannot conclude that it was an abuse of discretion for the trial court to decide that termination was in the best interests of the children in order to allow adoption and a permanent home for the children. Consequently, we also affirm as to respondent father.
Affirmed. Judges ELMORE and DILLON concur.
Report per Rule 30(e).