Opinion
No. COA16-204
10-04-2016
IN THE MATTER OF: Z.R.
No brief filed on behalf of the Petitioner Vance County Department of Social Services. Jeffrey L. Miller for the Appellant-Respondent-Father. Parker Poe Adams & Bernstein LLP, by Mary Katherine Stukes, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Vance County, No. 14-JT-8 Appeal by Respondent-Father from order entered 10 December 2015 by Judge J. Henry Banks in Vance County District Court. Heard in the Court of Appeals 12 September 2016. No brief filed on behalf of the Petitioner Vance County Department of Social Services. Jeffrey L. Miller for the Appellant-Respondent-Father. Parker Poe Adams & Bernstein LLP, by Mary Katherine Stukes, for Guardian ad Litem. DILLON, Judge.
Respondent-Father ("Father") appeals from an order terminating his parental rights to his son, Z.R. ("Zack"). Because the trial court's findings of fact do not support the sole termination ground, we reverse.
The pseudonym "Zack" is used throughout for ease of reading and to protect the child's identity.
I. Background
In March 2014, the Vance County Department of Social Services ("DSS") assumed custody of Zack due to issues in his mother's home. Father was not living with Zack at the time, and has resided in the same home since the commencement of this matter. DSS inspected Father's home to assess whether it was suitable for Zack, but determined that the home would need several repairs before Zack could live there. Accordingly, Zack was placed with a cousin.
In June 2013, the trial court entered an order adjudicating Zack dependent. The trial court then entered a disposition order continuing custody with DSS and placement with the cousin. The trial court found that Zack could not be placed with Father because of his home's condition, his pending criminal charges, and his prior history with child protective services. The trial court also directed Father to comply with his case plan, which required Father to do the following: (1) submit to a mental health assessment and follow all recommendations; (2) attend and successfully complete parenting classes and demonstrate the skills learned through interactions with Zack; (3) submit to a domestic violence assessment and follow all recommendations; (4) obtain and maintain stable housing; (5) obtain and maintain stable employment or demonstrate the ability to financially support Zack; and (6) execute all releases necessary to permit DSS review of Father's progress on the case plan.
Father's prior history with child protective services did not involve Zack.
There are multiple versions of Father's case plan contained in the record. However, for reasons discussed later in this opinion, see infra III.C, our review is limited to the case plan set forth in the termination order.
In June 2015, the court entered an order ceasing reunification efforts and establishing a concurrent plan for adoption. Shortly thereafter, DSS filed a petition to terminate the parents' parental rights, alleging neglect and failure to make reasonable progress to correct the conditions that led to the removal of Zack from his parents' care. Prior to the termination hearing, Zack's mother relinquished her parental rights.
On 10 December 2015, the trial court entered an order terminating Father's parental rights. The court concluded that: (1) Father failed to make reasonable progress to correct the conditions that led to Zack's removal; and (2) termination of Father's parental rights was in Zack's best interests. Father filed a timely notice of appeal.
II. Standard of Review
This Court reviews termination orders to determine "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, 591 S.E.2d 1, 6 (internal quotation marks omitted). If the appellant fails to dispute specific findings of fact, those findings "are deemed to be supported by sufficient evidence and are binding on appeal." In re M.D., 200 N.C. App. 35, 43, 682 S.E.2d 780, 785 (2009). However, "[t]he trial court's conclusions of law are fully reviewable de novo by the appellate court." In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008) (internal quotation marks omitted). A trial court may terminate parental rights where:
The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.N.C. Gen. Stat. § 7B-1111(a)(2) (2013).
III. Analysis
We now address whether the trial court erred in terminating Father's parental rights. Father challenges several of the trial court's findings of fact as unsupported by the evidence, and argues that the remaining findings of fact do not support the trial court's conclusion that he willfully left Zack in foster care for more than twelve months without correcting the conditions that led to Zack's removal. We agree.
A. Findings of Fact 26 and 35 are Unsupported by the Evidence
Father argues that findings of fact 26 and 35 are unsupported by clear, cogent, and convincing evidence. We agree. Father objected to the trial testimony supporting these findings of fact on the basis of hearsay.
Findings of fact 26 and 35 provide as follows:
26. The father engaged in an inappropriate conversation with foster parent while the child was listening on the speaker phone. The father stated that it was all the mother's fault and that she was a "bitch." The minor child heard the conversation.The trial court did not err in admitting the testimony as it could be used to determine Zack's best interests. See N.C. Gen. Stat. § 7B-1110(a). However, the trial court stated that it was admitting the challenged testimony solely to show the effect on the listener, a statement contradicted by the court's clear reliance on this testimony in concluding that Father had not made reasonable progress. The challenged testimony does not constitute clear, cogent, and convincing evidence. No other admissible evidence supports these two findings of fact. Therefore, these findings of fact cannot be used to support termination of Father's parental rights.
. . . .
35. The child has had issues with sleeping in his own bed due to the father's comments to the child that there is a monster under his bed.
B. Findings of Fact 12, 18, and 33 are Partially Unsupported by the Evidence
Father also argues that findings of fact 12, 18, and 33 are not supported by the evidence. These findings provide as follows:
12. On August 11, 2015, [a DSS social worker] was concerned about the safety of the child. [Father had] placed the child on the top of the refrigerator in the visitation room at [DSS] and proceeded to walk off, leaving the child on the refrigerator.While it appears that Father did, at the very least, momentarily place Zack on top of a refrigerator, there is no evidence that Father in fact left Zack there.
. . . .
18. A homestudy was completed at the beginning of the matter and the floor of the home was in disrepair among other things. The father was given a list of objectives to complete but it is unknown whether he has done so. The father proffered no evidence of the repairs.
. . . .
33. The father has not provided medical records from Daymark after being it has been [sic] requested of him repeatedly.
Father challenges the last sentence of finding of fact 18, which provides that Father "proffered no evidence of the repairs." Father testified at the hearing that he made the requested repairs and informed the social workers about the repairs. There was no evidence contradicting his testimony, and the social worker assigned to the case testified that she had not been to his home since the initial home-study. Accordingly, we hold the last sentence of finding of fact 18 is unsupported by clear, cogent, and convincing evidence.
As for finding of fact 33, Father challenges the court's finding that DSS "repeatedly" asked Father to provide his medical records from Daymark. While the evidence established that DSS did not have Father's medical records, there was no evidence regarding the number of times DSS asked Father to obtain the records. At most, the evidence shows that Daymark refused to provide Father's medical records upon request from DSS. Accordingly, the portion of finding of fact 33 indicating that DSS repeatedly asked Father to furnish his medical records is unsupported by clear, cogent, and convincing evidence.
C. The Remaining Findings of Fact Do Not Support Termination
Lastly, Father contends that the trial court's remaining findings of fact do not support termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). The trial court set forth Father's case plan for reunification in finding of fact 8 of the termination order, which is as follows:
a. Attend [the] 24/7 Dad program and demonstrate the skills he has learned through his interactions with the child;
b. Obtain and maintain safe and stable employment or show he can financially provide for the child;
c. Obtain and maintain safe and stable housing for the child;
d. Submit himself to a substance abuse assessment and follow any and all recommendations thereof;
e. Submit himself to a mental health assessment and follow any and all recommendations thereof;
f. Submit to random drug screens at the request of [DSS].
While this case plan differs from the one set forth in the initial disposition order and the review and permanency planning orders, neither party has challenged this "version" of the case plan. Thus, this case plan is binding on this Court. See In re M.D., 200 N.C. App. at 43, 682 S.E.2d at 785 (holding as a general proposition that uncontested findings of fact are binding on appeal). We therefore use this case plan to determine whether the court's findings of fact support its conclusion that Father failed to make reasonable progress in correcting the conditions that led to Zack's removal.
The trial court found that Father had completed the 24/7 Dad Program in May 2014, but that DSS still had "some concerns" about his parenting skills given his lack of visitation and the refrigerator incident. However, the trial court made no ultimate finding(s) of fact determining that Father failed to demonstrate parenting skills. Instead, the court simply stated that DSS had unspecified "concerns." Indeed, the sole concern supporting this finding is the refrigerator incident. We hold that the refrigerator incident, in and of itself, is insufficient to establish that Father failed to make reasonable progress demonstrating the parenting skills he learned through the 24/7 Dad Program.
The court also found that: (1) Father has had a home since the beginning of the case; (2) the home needed repairs; and (3) Father failed to demonstrate that he had made the requested repairs. However, Father testified that he made the requested repairs, and DSS put forth no evidence refuting this testimony. DSS failed to meet its burden and prove that Father failed to obtain and maintain safe and stable housing for Zack. See In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d 403, 406 (2003) (restating general proposition that DSS has the burden to prove the existence of a termination ground).
Similarly, DSS failed to show either: (1) Father failed to obtain and maintain safe and stable employment; or (2) Father was unable to financially provide for Zack. While Father was disabled and could not work, he received Supplemental Security Income benefits of $732 per month. DSS failed to present evidence showing that Father could not financially provide for Zack with these disability benefits.
Lastly, DSS failed to show that Father had not submitted to substance abuse and mental health assessments or that Father failed to follow all provided recommendations. The trial court made no findings on whether Father had obtained a substance abuse or mental health assessment or whether he was following the recommendations of these assessments. Father was also required to submit to DSS requested drug screens, which the court found he had.
We hold that the remaining findings of fact are insufficient to support termination of Father's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). Father has made reasonable progress towards correcting the conditions that led to Zack's removal. This Court has repeatedly held that "perfection is not required to reach the reasonable [progress] standard." E.g., In re S.D., ___ N.C. App. ___, ___, 776 S.E.2d 862, 867 (2015) (internal quotation marks omitted).
IV. Conclusion
As the trial court's findings of fact do not support termination for failure to demonstrate reasonable progress, we reverse the trial court's order terminating Father's parental rights to Zack. Because we reverse the trial court's order on this basis, we need not address Father's remaining arguments.
REVERSED.
Judges MCCULLOUGH and ENOCHS concur.
Report per Rule 30(e).