Opinion
No. COA15-1213
07-19-2016
IN THE MATTER OF: O.D.S.
Holcomb & Cabe, LLP, by Samantha H. Cabe, for petitioner-appellee Orange County Department of Social Services. Mercedes O. Chut for respondent-appellant mother. Winston & Strawn LLP, by Amanda L. Groves and Kobi Kennedy Brinson, for guardian ad litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure. Orange County, No. 14 JT 14 Appeal by respondent-mother from order entered 11 August 2015 by Judge Beverly Scarlett in Orange County District Court. Heard in the Court of Appeals 27 June 2016. Holcomb & Cabe, LLP, by Samantha H. Cabe, for petitioner-appellee Orange County Department of Social Services. Mercedes O. Chut for respondent-appellant mother. Winston & Strawn LLP, by Amanda L. Groves and Kobi Kennedy Brinson, for guardian ad litem. ELMORE, Judge.
Respondent-mother appeals from an order terminating her parental rights to her minor child Oscar on the ground of neglect. We affirm.
We employ a pseudonym to protect the identity of the minor child and for ease of reading.
I. Background
On 25 February 2014, six days after Oscar was born, the Orange County Department of Social Services (DSS) filed a petition alleging that he was a neglected and dependent juvenile. The petition alleged that Oscar's father had severely abused Oscar's brother when the brother was ten weeks old, causing fractures to his skull, ribs, right radius, ulna, and metatarsus, and he was diagnosed with a sub-acute subdural hematoma and retinal hemorrhages. Several charges were pending against the father. As a result, all three of Oscar's siblings were adjudicated neglected, the youngest was also adjudicated abused, and all three are in the custody of the Person County DSS. The petition further alleged that respondent-mother was unable to protect her children and had tested positive for marijuana at Oscar's birth. DSS obtained nonsecure custody of Oscar and placed him in a foster home.
On 8 May 2014, the trial court entered an order concluding that Oscar was a neglected juvenile. Respondent-mother was granted weekly supervised visitation, was ordered to continue her weekly outpatient therapy and medication management, and was ordered to submit to random drug screens. In October 2014, respondent-mother was indicted for Felony Child Abuse by Omission. She pleaded guilty to the charge on 15 April 2015 and was placed on supervised probation for eighteen months.
On 20 February 2015, the court entered an order which found, inter alia, that respondent-mother had not met the goals of her case plan and changed the permanent plan to adoption. The order also relieved DSS of further reunification efforts. That same day, DSS filed a motion in the cause to terminate respondent-mother's parental rights on the ground of neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (2015). A hearing on the termination motion was held on 16 July 2015. On 11 August 2015, the trial court entered an order concluding that grounds existed to terminate respondent-mother's parental rights based on neglect and that termination was in Oscar's best interests. Respondent-mother filed a timely notice of appeal.
II. Analysis
Respondent-mother challenges certain findings of fact as not supported by the evidence and argues that the trial court erred in concluding that her parental rights were subject to termination on the basis of neglect. We disagree.
"The standard for 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." In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984) (citation omitted).
Under N.C. Gen Stat. § 7B-1111(a)(1), the trial court may terminate the parental rights to a juvenile upon a finding that the parent has neglected the juvenile. "The juvenile shall be deemed to be . . . neglected if the court finds the juvenile to be . . . a neglected juvenile within the meaning of G.S. 7B-101." Id. A neglected juvenile is defined, in relevant part, as "[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker. . . . In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile . . . lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home." N.C. Gen. Stat. § 7B-101(15) (2015).
"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." In re Pierce, 146 N.C. App. 641, 651, 554 S.E.2d 25, 31 (2001), aff'd, 356 N.C. 68, 565 S.E.2d 81 (2002). "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." Id. (citation omitted). In such a situation, the trial court must find "by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [the] parent[ ]." In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).
Respondent-mother challenges findings that she had lived with the father prior to his incarceration, that she consistently lives with drug users, that her only employment was at Wal-Mart, that she stopped paying child support, that she continues to have contact with the father, that she does not fully comprehend that the father injured her other son, and that she did not meet her case plan goals. Respondent-mother also argues that the trial court did not make sufficient findings to support the conclusion of neglect.
During the termination hearing, however, respondent-mother testified that "she was not there" when the abuse of her other son occurred so she could not say what happened and that it was "not in [the father's] character to do something like that . . . ." She also testified that respondent-father called her approximately once a week from prison and that they talked regularly. When asked why she continues to talk to him after he pleaded guilty to offenses that caused permanent damage to her other son, she stated, "Because we were in a relationship for like eleven years and I mean, he has nothing to do with the children now. . . . He's, you know, a friend of mine."
Respondent-mother's social worker testified that respondent-mother failed to comply with several aspects of her case plan by, inter alia, failing to consistently attend therapy, failing to take multiple drug screens, and failing to create a safety plan. While respondent-mother informed the social worker that she had retained work in Virginia cleaning homes, the social worker testified that respondent-mother failed to provide any documentation to verify the employment. The social worker also testified that, other than the abuse by the father, other safety issues concern the fact that her other son had old injuries for which respondent-mother would have been present for and did not seek treatment, she did not have stable housing, and she reported that she previously lived with individuals who were using drugs. Thus, the social worker testified that there is a safety concern regarding whether respondent-mother recognizes the type of environment Oscar should or should not be around.
Moreover, respondent-mother does not challenge the trial court's finding that she admitted to smoking marijuana during her pregnancy, she did not seek prenatal care until about six weeks prior to delivery, she failed to take three of the eight required drug screens, she did not create a safety plan for Oscar should he return to the home, she pleaded guilty to Child Abuse by Omission, and she failed to provide verification of employment, housing, or her engagement in mental health services. Her argument regarding her contact with the father hinges on the distinction that she does not initiate the contact, yet she readily admitted that she talks with him on at least a weekly basis.
The trial court's conclusion that respondent-mother's parental rights were subject to termination due to neglect was primarily based upon its findings regarding her current inability to comprehend the seriousness of the abuse inflicted upon Oscar's brother and the father's culpability for that abuse, findings that she continued to be in contact with the father, and findings that she had not completed multiple aspects of her case plan.
The evidence was sufficient to support the trial court's findings, which, in turn, support the trial court's determination that "[i]f returned to the custody of Respondent mother, [Oscar] would be at risk of harm." Respondent-mother's refusal to accept that Oscar's sibling had been abused by the father, her continued contact with the abuser, and her failure to create a safety plan necessarily show that she failed to comprehend the reasons for Oscar's removal, such that Oscar would be at risk for future neglect if he was returned to respondent-mother's care. See In re D.A.H.-C, 227 N.C. App. 489, 500-01, 742 S.E.2d 836, 844 (2013) (holding that the trial court properly concluded that there was a substantial probability of future neglect based upon the respondent-mother's failure to recognize the conditions which led to her children's prior adjudications and her inability to refrain from associating with individuals who would abuse her or her children).
Thus, the trial court properly concluded that respondent-mother's parental rights were subject to termination based upon neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). The trial court's findings, which were supported by competent evidence, demonstrated that respondent-mother had previously neglected Oscar and that such neglect would likely be repeated if Oscar was returned to her care.
III. Conclusion
For the foregoing reasons, the trial court's order is affirmed.
AFFIRMED.
Judges HUNTER, JR. and McCULLOUGH concur.
Report per Rule 30(e).