Opinion
No. COA11–1605.
2012-05-1
In the Matter of J.J.C., Z.R.C., and D.M.C.
Dean W. Hollandsworth for petitioner-appellee New Hanover County Department of Social Services. Pamela Newell for guardian ad litem.
Appeal by respondents from order entered 21 October 2011 by Judge Melinda H. Crouch in New Hanover County District Court. Heard in the Court of Appeals 17 April 2012. Dean W. Hollandsworth for petitioner-appellee New Hanover County Department of Social Services. Pamela Newell for guardian ad litem.
Ryan McKaig for respondent-appellant mother.
Mary McCullers Reece for respondent-appellant father.
ERVIN, Judge.
Respondent–Mother Tamika J. and Respondent–Father William C. appeal from an order terminating their parental rights in J.C., Z.C., and D. C. On appeal, Respondent–Mother argues that the trial court erred by concluding that her parental rights in the children were subject to termination and both Respondent–Father and Respondent–Mother argue that the trial court erred by concluding that the children's best interests would be served by the termination of their parental rights. After careful consideration of the parents' challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
We will refer to J.C. throughout the remainder of this opinion as “James,” a pseudonym used for ease of reading and to protect the child's privacy.
We will refer to Z.C. throughout the remainder of this opinion as “Zelda,” a pseudonym used for ease of reading and to protect the child's privacy.
We will refer to D.C. throughout the remainder of this opinion as “Darla,” a pseudonym used for ease of reading and to protect the child's privacy.
I. Factual Background
Respondent–Father and Respondent–Mother are the parents of James, who was born in October 2004; Zelda, who was born in October 2005, and Darla, who was born in June 2007. In June 2007, the children were removed their parents' home. The children were adjudicated to be neglected and dependent in August 2007 based on the unclean and unsafe conditions present in the household in which they lived, Respondent–Father's mental limitations, Respondent–Mother's schizophrenia, and the parents' inability to maintain appropriate living conditions or to manage their financial affairs. After the children were removed from the parents' home, the New Hanover County Department of Social Services placed James and Zelda in the home of a relative and placed Darla in a foster home. Although DSS placed Darla with the parents in July 2008 and placed all three children with Respondent–Father from September 2009 to January 2010, neither of these trial placements proved successful.
In 2011, an error in the signing of the 2007 adjudication and disposition orders was discovered. As a result, DSS voluntarily dismissed the original juvenile petition on 11 April 2011. On the same day, DSS filed a new petition alleging that James, Zelda, and Darla were neglected and dependent juveniles and obtained the issuance of a new nonsecure custody order authorizing DSS to take the children into its custody. On the following day, DSS filed a petition seeking to have the parents' parental rights in the children terminated. According to DSS, the parents' parental rights were subject to termination for neglect pursuant to N.C. Gen.Stat. § 7B–1111(a)(1); failure to make reasonable progress pursuant to N.C. Gen.Stat. § 7B–1111(a)(2); and dependency pursuant to N.C. Gen.Stat. § 7B–1111(a)(6). At the request of DSS, the neglect and dependency petition and the termination of parental rights petition were consolidated for hearing.
On 21 October 2011, the trial court entered an order concluding that the parents' parental rights in the children were subject to termination based on all three of the grounds alleged in the DSS termination petition. In addition, the trial court concluded that the termination of the parents' parental rights would be in the children's best interests. Both Respondent–Mother and Respondent–Father noted appeals to this Court from the trial court's order.
II. Legal Analysis
A. Grounds for Termination
As an initial matter, Respondent–Mother argues that the trial court erred by concluding that her parental rights in the children were subject to termination. Although the trial court concluded that Respondent–Mother's parental rights were subject to termination pursuant to N.C. Gen.Stat. §§ 7B–1111(a)(1), (a)(2), and (a)(6), we need not address Respondent–Mother's challenge to the trial court's conclusion that her parental rights were subject to termination pursuant to N.C. Gen.Stat. §§ 7B–1111(a)(1) and (a)(2) given our determination that the record contains adequate support for the termination of Respondent–Mother's parental rights in the children pursuant to N.C. Gen.Stat. § 7B–1111(a)(6). See In re Pierce, 67 N.C.App. 257, 261, 312 S.E.2d 900, 903 (1984) (holding that a finding that one statutory ground for termination exists is sufficient to support the termination of a parent's parental rights).
“The standard of review in termination of parental rights cases is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law. We then consider, based on the grounds found for termination, whether the trial court abused its discretion in finding termination to be in the best interest of the child.” In re Shepard, 162 N.C.App. 215, 221–22, 591 S.E.2d 1, 6 (citation and quotation marks omitted), disc. review denied sub nom. In re D .S., 358 N.C. 543, 599 S.E.2d 42 (2004). In view of the fact that Respondent–Mother has not challenged any of the trial court's findings of fact, they are binding upon on us for purposes of appellate review. In re Humphrey, 156 N.C.App. 533, 540, 577 S .E.2d 421, 426 (2003).
According to N.C. Gen.Stat. § 7B–1111(a)(6), a trial court may terminate a parent's parental rights upon finding:
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 [N.C. Gen.Stat. § ] 7B–101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.
A dependent child is one who needs “assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.” N.C. Gen.Stat. § 7B–101(9). “Under this definition, the trial court must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.” In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005).
In concluding that Respondent–Mother's parental rights were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(6), the trial court made the following unchallenged findings of fact:
8. The Court heard the testimony of Georgia Morris, social worker assigned to this matter, who testified in support of all material allegations contained in the Petition. Ms. Morris testified and the Court finds as fact that the children were initially found to be neglected and dependent by the Court at the hearing on the adjudication of the Juvenile Petitions on August 9, 2007 due to a lack of proper care and supervision and living in an environment injurious to their welfare due to the unclean and unsafe conditions of the household; the mental retardation of the father and the schizophrenia of the mother and their inability to maintain their finances or appropriate living conditions in the residence for themselves and the children despite the assistance of a case manager and other support professionals.
....
12. Several home studies of relatives were denied either due to criminal history or for lack of adequate living space in the home for placement of the Juveniles. An approved ICPC home study of the paternal uncle[, ] was eventually received after the children had been in foster care and relative placements for almost three years; however the Department decided that sending the children to Oklahoma would sever ties in North Carolina with the parents and with all the children's service providers. Also, [the uncle] had only minimal contact with the children over the years.
13. ... An extensive list of thirteen recommendations for improvement in [Zelda's] situation was included in the more recent evaluation[,] and implementation of these steps by parents of average intelligence would be challenging and would be seemingly insurmountable by parents of limited intelligence, as [Respondent–Father] and [Respondent–Mother] possess. In addition, the challenging behaviors exhibited by [Zelda] and acknowledged by [Respondent–Father], would be difficult to manage for a parent of average intelligence as well and even more so for parents with cognitive limitations such as [Respondent–Father] and [Respondent–Mother]....
14. Dr. Len Lecci was accepted by the Court as an expert witness in the field of clinical psychology, specializing in psychological assessments. He has performed parental capacity evaluations for ten years. He performed recent psychological evaluations of both parents, for [Respondent–Mother] in February of 2011 and for [Respondent–Father] in May of 2011. As for [Respondent–Mother], her IQ testing revealed a full scale score of 71, which is just above the cutoff for mild mental retardation and is in the 3rd percentile, scoring below 97% of the population. She is also diagnosed with schizophrenia, residual type and receives monthly injections of Haldol. The fact that she takes injections of her medication rather than [taking it] orally and suffers a side effect of slurred speech is indicative of her reluctance to be compliant in taking her medications, in addition to the fact that she was noncompliant by her own admission for approximately three months in late 2009. It is also concerning that she does not recognize her own symptoms of decompensation of her mental state and depends on her mother to inform her of this situation. Given her cognitive deficits, her schizophrenia and lack of insight, she would struggle with parenting responsibilities.[ ]
....
18. [Respondent–Mother] was called as an adverse witness and later on her own behalf and testified and the Court finds as fact that she missed the visit with her children last week because she was going to the community resource, Mother Hubbard's Cupboard, to pick up school book bags for the children. Her home was in disarray at the outset of the case in 2007 due to preparing to move. She is on Haldol and blood pressure medication but sometimes she has slurred speech from the Haldol. She had told Dr. Lecci on September 4, 2009 that she was doing fine without medications. She testified that she has a lot of male friends; manages her own finances; pays $450 per month for rent plus $120 per month for a washer and dryer. She presently owes Progress Energy $600 and the electricity is in her mother's name at her current residence. She has a caseworker with Evergreen that helps with her transportation for her appointments. She testified that she meet [sic] [Respondent–Father] in December 2003 and married him in January, 2004. She has been hospitalized at least 3 or 4 times for hallucinations with her last hospitalization in 2008. Her counsel submitted pictures of her prior homes but not where she lives at present.
....
20. In the four years and two months since the removal of the children and attempts at trial placements with the parents as a couple and separately, the parents have been unable to maintain consistency in the areas of supervision of the children, appropriate living conditions, maintenance of their own mental health and provision of proper structure in the home for these children, at least two of which are behaviorally challenged and require much attention that neither of the parents can provide, considering their own cognitive deficits and mental health issues....
....
22. The parents are incapable of providing for the proper care and supervision of the children, and these children are dependent children within the meaning of N.C. [Gen.Stat.] § 7B–101, and there is a reasonable probability that such incapability will continue for the foreseeable future.
In seeking to persuade us to conclude that the trial court erroneously concluded that her parental rights were subject to termination for dependency pursuant to N.C. Gen.Stat. § 7B–1111(a)(6), Respondent–Mother argues that her mental illness was not “so crippling that it would prevent her from providing care to the children for the foreseeable future” and points to evidence tending to show that she had maintained housing and taken her medication as “signs of emerging stability.” The trial court's factual findings show, however, that Respondent–Mother has been diagnosed with schizophrenia; that she is unable to tell when her mental state is deteriorating; that she has a history of failing to comply with her medication regimen; that she has been hospitalized for hallucinations at least three or four times; and that, throughout the time during which DSS has been involved with James, Zelda, and Darla, she has struggled with the performance of her parenting responsibilities. We hold that the trial court's findings provide ample support for its conclusion that Respondent–Mother is incapable of providing care for or supervising the children and that her incapacity will continue for the foreseeable future.
In addition, Respondent–Mother argues she had an appropriate alternative child care arrangement for the children, which consisted of placement with Respondent–Father's brother. The trial court rejected Respondent–Mother's proposed appropriate alternative child care arrangement on the grounds that several home studies performed with respect to various relatives had produced unsatisfactory results. Furthermore, the trial court noted that, even though the residence of the paternal uncle had been approved, the home study upon which Respondent–Mother relies had not been received until after the children had been in foster care or a relative placement for almost three years. Finally, the trial court concluded that this paternal uncle, who lived in Oklahoma, had only had minimal contact with the children and that sending the children to Oklahoma to live with him would result in the severance of their ties with the parents and their own service providers. These findings provide ample basis for the trial court's determination that no adequate alternate child care arrangement was available to Respondent–Mother. As a result, we hold that the trial court's unchallenged findings support its determination that Respondent–Mother's parental rights were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(6).
B. Best Interest Determination
Secondly, both Respondent–Mother and Respondent–Father contend that the trial court erred by concluding that the termination of their parental rights would be in the children's best interests. In the course of making the required “best interest” determination, a trial court is required to consider:
(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.
N.C. Gen.Stat. § 7B–1110. The trial court made the following findings of fact in support of its determination that termination of the parents' parental rights would be in the children's best interests:
24. That pursuant to the provisions of N.C. [Gen.Stat.] § 7B–1110, the following findings of fact are made regarding the best interests of the children: The Juveniles, [James], having a date of birth of October [ ] 2004, [Zelda], having a date of birth of October [ ] 2005 and [Darla], having a date of birth of June [ ] 2007 are six years and ten months; five years and ten months and four years and two months of age, respectively, at the date of this hearing; their likelihood of adoption is strong, considering that they are each in stable residences, [James] and [Zelda] with a relative, [ ], with whom they have been placed for over a year and seven months and [Darla] with [ ] foster parents, with whom she has been placed since the day after her birth and has remained with her entire life except for two periods of trial placement with the parents totaling approximately four months and two weeks cumulatively, therefore placed with them for approximately 3 years and ten months; termination of parental rights will aid in the accomplishment of the permanent plan of adoption for the children, as that is the only barrier to adoption at this time; the bond between the mother and children is stronger for her and [Zelda] than it is between her and [James] and [Darla] as shown by observation of her visits with the children and their interaction with her, the bond between the children and their father is not strong, as he has visited only twice in the past year and has poor interaction with them at such visits, in addition to the difficulty that he exhibited with the children during the period of trial placement; and the quality of the relationship between the children and their proposed adoptive parents is that of a secure attachment as testified to by Dr. Karen Kirk as between [Darla] and [the foster parents] and by Shelley Chambers as between [James] and [Zelda] and [the relative with whom they have been placed]. The children are considered to be part of the families of the care providers. Relevant considerations as to best interests include the expressed intentions of [the foster parent] and [the relative] to facilitate frequent visitation between the siblings now and in the future and their willingness to allow contact between the children and the biological parents after the completion of the adoption of the children.
....
26. That it is in the best interests of the children [James], [Zelda] and [Darla] that the parental rights of [Respondent–Mother] and [Respondent–Father] be terminated so that the children can be afforded an opportunity for adoption and permanence.
Both Respondent–Father and Respondent–Mother assert that termination of their parental rights was unnecessary because the trial court could have provided a safe, permanent home for the juveniles by simply awarding guardianship to the relative and the foster parents or by approving another disposition less drastic than the termination of their parental rights in the children. We do not find this argument persuasive.
Although we acknowledge that, as the parents argue, one policy goal sought to be achieved by means of the Juvenile Code is “protect[ing] all juveniles from the unnecessary severance of a relationship with biological or legal parents,” N.C. Gen.Stat. § 7B–1100(2), the Juvenile Code also “recognize[s] the necessity for any juvenile to have a permanent plan of care at the earliest possible age.” Id. Despite the fact that legal guardians enjoy certain statutory protections intended to ensure that their efforts on behalf of the children in their care are not subject to undue interference, a party, including a respondent in a juvenile proceeding, may file a motion seeking judicial review of an order of guardianship pursuant to N.C. Gen.Stat. § 7B–906 or the modification or vacation of an order of guardianship pursuant to N.C. Gen.Stat. § 7B–1000. As a result, an order establishing a guardianship does not provide the same degree of finality for the juvenile as an order terminating a parent's parental rights and a subsequent order of adoption.
As the trial court's findings reflect, the children are relatively young, they have been in DSS custody for a prolonged period of time, they have made substantial progress during their current placements, and their current caregivers are interested in adopting them. In light of these undisputed facts, we are unable to conclude that the trial court abused its discretion by terminating Respondent–Mother's and Respondent–Father's parental rights in James, Zelda, and Darla.
III. Conclusion
Thus, for the reasons set forth above, we conclude that none of the parents' challenges to the trial court's termination order have merit. As a result, the trial court's termination order should be, and hereby is, affirmed.
AFFIRMED. Judges ROBERT C. HUNTER and STROUD concur.
Report per Rule 30(e).