Opinion
No. COA11–1483.
2012-05-1
In the Matter of W.Z.P.
Charlotte W. Nallan, for petitioner-appellee, Buncombe County Department of Social Services. M. Carridy Bender for appellee, Guardian ad Litem.
Appeal by respondent-mother from orders entered 16 and 19 September 2011 by Judge Ward D. Scott in Buncombe County District Court. Heard in the Court of Appeals 9 April 2012. Charlotte W. Nallan, for petitioner-appellee, Buncombe County Department of Social Services. M. Carridy Bender for appellee, Guardian ad Litem.
Sydney Batch for respondent-appellee, mother.
HUNTER, Robert C., Judge.
Respondent appeals from orders terminating her parental rights to her son, W.Z.P. (“Willie”). For the following reasons, we affirm.
Respondent is the mother of Willie, born September 2009. A.N. is the father of Willie and the paternal grandfather of respondent. The Buncombe County Department of Social Services (DSS) has been involved with respondent since 1995 when respondent, at two years of age, was adjudicated a neglected juvenile. Respondent was again adjudicated a neglected juvenile at fifteen years of age in January 2008. The trial court based the adjudication upon respondent's serious mental health issues, respondent's intense fighting and cussing, and respondent modeling the behaviors of her grandmother, who also had serious mental health issues.
In April 2008, DSS received a report that respondent was having sex with A.N. in exchange for money. The trial court ordered respondent not to have any contact with A.N. DSS received a report in May 2009, however, that respondent was living with A.N. and that she was three months pregnant with A.N.'s child.
In September 2009, after respondent gave birth to Willie, DSS filed a juvenile petition alleging that Willie was a neglected juvenile. DSS took nonsecure custody of Willie. By order filed 21 January 2010, the trial court adjudicated Willie a neglected juvenile based upon respondent's mental health issues; her failure to comply with services; and her refusal to recognize the inappropriateness of her relationship with A.N. The trial court ordered respondent to: (1) take medication as prescribed and follow the recommendations of her psychiatrist, (2) attend therapy regularly and follow the recommendations, (3) participate with intensive in-home services, and (4) complete parenting classes and demonstrate appropriate parenting techniques during visitations in order to reunify with her son. The trial court also ordered A.N., who was subsequently convicted of felony incest, not to have contact with respondent.
By a permanency planning order filed 24 March 2010, the trial court ordered the permanent plan be one of reunification with respondent, and ordered respondent to attend her high school classes and continue participating in Home Bound educational services. Respondent was ordered to complete a parenting capacity evaluation in May 2010. After holding a permanency planning review hearing on 12 August 2010, the trial court found respondent had not made enough progress in her case plan; that she was communicating with A.N.; and that she continued to exhibit explosive behavior. The trial court ceased reunification efforts with the parents and ordered DSS to finalize the permanent plan of adoption.
On 11 October 2010, DSS filed a petition to terminate the parental rights of respondent and A.N. DSS alleged grounds existed to terminate respondent's parental rights under N.C. Gen.Stat. § 7B–1111(a)(1) (neglect); N.C. Gen.Stat. § 7B–1111(a)(2) (failure to make reasonable progress); N.C. Gen.Stat. § 7B–1111(a)(3) (failure to pay a reasonable portion of the cost of care for the child); and N.C. Gen.Stat. § 7B–1111(a)(6) (incapability of providing proper care and supervision of the child).
After many continuances, the trial court conducted a termination hearing in July and August 2011. By an order filed 16 September 2011, the trial court concluded that grounds for termination of respondent's parental rights existed under N.C. Gen.Stat. § 7B–1111 (a)(1), (a)(2), and (a)(6). In a separate disposition order, the trial court concluded that it was in Willie's best interest to terminate respondent's parental rights. The trial court also terminated the parental rights of A.N. Respondent appeals.
I. Standard of Review
Our 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.” In re Shepard, 162 N.C.App. 215, 221–22, 591 S.E.2d 1, 6 (citation and quotations omitted), disc. review denied sub nom. In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004). We must “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.” Id .
II. Grounds for Termination
Respondent contends the trial court erred by finding and concluding that sufficient grounds existed to terminate her parental rights. We note that although the trial court concluded that grounds existed pursuant to sections 7B–1111 (a)(1), (a)(2), and (a)(6), we find it dispositive that the evidence is sufficient to support termination of respondent's parental rights under section 7B–1111(a)(6). See In re Pierce, 67 N.C.App. 257, 261, 312 S.E.2d 900, 903 (1984) (a finding of one statutory ground is sufficient to support the termination of parental rights).
N.C. Gen.Stat. § 7B–1111(a)(6) provides that a 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 G.S. 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 is “in need of 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).
Respondent challenges many of the trial court's findings of fact arguing that the trial court did not make independent findings of fact, but, rather, inappropriately adopted petitioner's allegations as its findings of fact. See In re Anderson, 151 N.C.App. 94, 97, 564 S.E.2d 599, 602 (2002) (“[T]he trial court's factual findings must be more than a recitation of allegations. They must be the ‘specific ultimate facts ... sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence.’ “ (quoting Montgomery v. Montgomery, 32 N.C.App. 154, 156–57, 231 S.E.2d 26, 28 (1977)). However, to support its conclusion that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(6), the trial court made the following independent findings of fact:
48. That the Department received information that despite the entry of a Court Order, the respondent parents were having contact. That the respondent mother continued to deny that she has had any phone contact with the respondent father, following the entry of this Court's Order directing that the respondent mother have no contact with the respondent father, until this Court hearing. The respondent mother continues to downplay her relationship with the respondent father. The respondent mother does not understand that her relationship with the respondent father is wrong, nor does she understand that the relationship presents safety issues for her and the minor child. The respondent mother ... does not fully understand the risk this relationship presents to the minor child.
49. In May 2010, despite the entry of a Court Order directing that the Respondent father have no contact with the Respondent mother, the two had a series of telephone conversations while the Respondent father was incarcerated at the Buncombe County Jail. During the phone conversations, the respondent father asked the respondent mother to bring him money and other items. During these conversations, the respondent mother told the respondent father that she loves him. The respondent father also tells the respondent mother that he loves her. The respondent parents express their intent to maintain their relationship.
....
59. That the respondent mother was treated by a psychologist, Dr. Kelly, from October, 2009, until July, 2011. That Dr. Kelly diagnosed the respondent mother with Bipolar/manic depressive with rapid cycling and anti-social personality disorder.
60. That during the treatment of the respondent mother by Dr. Kelly, the respondent mother demonstrated that over time she did not have the ability to properly parent a child. Dr. Kelly noted the respondent mother's relationship with respondent father, her relationship and continued fighting with her mother (noting the July 3rd, 2011 incident), her arrest for assault on a government official and the fact that the respondent mother did not stay in her own apartment and spent most, if not all of her time with her mother.
61. That the respondent mother continues to place herself in continued contact with her own mother, Dianna [H. ], and Dianna [H.] has been diagnosed by Dr. Kelly as having intermittent explosive disorder with aggression, bordering on social pathology. That the respondent mother will continue to have a relationship with her own mother and will expose the minor child, if in her custody, to her mother.
62. That the respondent mother has pending charges of assault on a government official, resisting a public officer and consumption of alcoholic beverage by a person under the age of nineteen (19) relating to an incident which occurred on or about February 16, 2011.
63. That the respondent mother was ordered by this Court to undergo a parental competency evaluation and she presented herself to Dr. Mary E. DeBeus [sic] on November 22, 2010 for the evaluation. That the respondent mother was initially defensive and then became so angry and hostile towards Dr. DeBeus that she could not be evaluated.
64. That both of the respondent parents lack an appropriate alternative child care arrangement.
65. That during the time that the minor child has been in the custody of the Department, the Orders of this Court have attempted to address the cause of the removal of the minor child from the home of the respondent mother as raised by the respondent mother's psychological evaluation of Dr. Burmeister and the observations and diagnosis of Dr. Kelly, to wit; interpersonal functioning, impulse control, aggression and poor judgment. That the respondent mother has made little or no progress as to each issue as of the date of this hearing as specified above.
Respondent concedes these findings of fact were not mere recitations of petitioner's allegations. Because these independent findings of fact support the trial court's ultimate conclusions, the inclusion of erroneous findings of fact does not constitute reversible error. See In re Beck, 109 N.C.App. 539, 548, 428 S .E.2d 232, 238 (1993) (concluding that where there was no evidence to support a finding of fact, inclusion of the erroneous finding was not prejudicial error because, if the erroneous finding was deleted, “there remain [ed] an abundance of clear, cogent, and convincing evidence to support a finding of neglect.”) Thus, respondent's argument is overruled.
Respondent asserts that “[t]here was no competent evidence presented that [respondent's] mental health diagnosis warrant [sic] a determination that she is incapable of parenting Willie.” We disagree.
Clinical Psychologist Dr. Calvin Kelly testified that respondent was diagnosed with rapid cycling bipolar disorder, which is “a great concern” because “it impairs [respondent's] judgment. It impairs her ability to make good sound decisions along with that there are times when her behaviors can be aggressive. She's easily agitated and irritated, and then also impairs her ability to focus and concentrate.” Dr. Kelly also testified that respondent's behaviors “are very consistent with that of an antisocial personality disorder.” Dr. Kelly further testified that “it would be very difficult for [respondent] to—over time to sustain any type of emotional regulation to provide for [Willie] on a long-term and ongoing basis.” When Dr. Kelly was asked, “it is your opinion that [respondent] cannot appropriately care for [Willie]?” Dr. Kelly responded, “That is correct.” Clinical psychologist Lauri Burmeister, who completed a psychological evaluation on respondent in 2008, testified that she would have concerns about respondent's ability to parent Willie based upon respondent's history of violence with her mother. Finally, Dr. Elizabeth deBeus, another psychologist, testified that when respondent came to her for the court ordered parenting evaluation, respondent had abrupt mood changes and was hostile. Dr. deBeus further testified that she would be “very, very, very hesitant to allow a child to live with a parent who had antisocial personality disorder traits” because “they will act in ways that are amoral and/or asocial without accepting responsibility for those actions.” We conclude DSS presented competent evidence to support its finding that respondent's mental health diagnosis rendered her incapable of parenting Willie.
Respondent also asserts that the trial court “inappropriately relied on [respondent's] relationship with [A.N.] as grounds for incapability.” We disagree.
Dr. Kelly's testimony shows that respondent's mental illness affects her judgment and decision making. Respondent chose to continue contact with A.N. despite having been ordered not to have contact with him. In fact, social worker Naomi Kent testified that respondent had made statements that she did not want “anything to do with [A.N. ]; I wouldn't have him around my baby.” In May 2010, however, DSS discovered recorded phone conversations which revealed contact between respondent and A.N. Further, Dr. Kelly testified that it would be a stressful situation for Willie, because of “the stress that is associated with dealing with a myriad of issues that are complicated by the fact that this is both his father and great grandfather.” Based upon the evidence presented, the trial court properly considered respondent's relationship with A.N. as a byproduct of respondent's mental illness and a basis for respondent's incapability to care for Willie. We conclude the trial court's findings of fact are supported by the evidence and, the findings of fact support the trial court's conclusion that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(6). Accordingly, the trial court's termination orders are affirmed.
Affirmed. Judges STROUD and ERVIN concur.
Report per Rule 30(e).