Opinion
No. COA12–1432.
2013-04-16
In the Matter of H.J.C., II, a Minor Child.
Lauren Vaughan, for petitioner-appellee, Catawba County Department of Social Services. Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson, for respondent-appellant.
Appeal by respondent from order entered 22 August 2012 by Judge C. Thomas Edwards in Catawba County District Court. Heard in the Court of Appeals 3 April 2013. Lauren Vaughan, for petitioner-appellee, Catawba County Department of Social Services. Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson, for respondent-appellant.
Administrative Office of the Courts, by Deana K. Fleming, Associate Counsel, for guardian ad litem.
DAVIS, Judge.
Respondent-mother L.D.T. (“respondent”) appeals from the trial court's order terminating her parental rights with respect to her son H.J.C., II (“Harry”). After careful review, we affirm.
The pseudonym “Harry” is used throughout this opinion to protect the privacy of the minor and for ease of reading. N.C. R.App. P. 3.1(b).
Factual Background
On 20 February 2011, an officer with the Maiden Police Department went to a home in Maiden, North Carolina, where he discovered that methamphetamines were being produced. Inside, the officer found Harry, who had been left there by respondent in the care of her boyfriend. Concerned for Harry's safety, a social worker with the Catawba County Department of Social Services (“DSS”) attempted to contact respondent and implement a safety plan for the child. Respondent refused to tell the social worker where she was or return to the residence to pick up Harry. As a consequence, DSS arranged for Harry to be taken to the home of his maternal grandmother. Harry remained in his grandmother's custody until 4 April 2011, at which time DSS obtained nonsecure custody of Harry and placed him with his maternal uncle's family.
During the time Harry was living with his grandmother, respondent never attempted to see Harry or contact DSS. DSS was able to get in touch with respondent on 7 March 2011, but, once again, she refused to disclose her whereabouts, refused to take a drug test, and declined to come to DSS's offices to discuss a case plan. DSS filed a petition on 11 March 2011 alleging that Harry was a neglected and dependent juvenile. The trial court, after conducting an adjudication hearing, entered an order on 23 August 2011 adjudicating Harry as a neglected juvenile and granting custody to DSS. The court ordered respondent to (1) obtain a substance abuse assessment; (2) complete a parenting assessment; (3) submit to random drug screens; (4) secure stable housing and employment; and (5) report to DSS and the guardian ad litem.
Respondent was incarcerated on 29 April 2011 for a probation violation resulting from a conviction for falsifying a prescription for Hydrocodone. Respondent remained in county jail until 27 December 2011. During the period of incarceration, respondent was visited twice by a social worker to discuss a case plan working toward reunification with Harry. Respondent refused to sign the case plan both times. Also during this period, respondent did not write to Harry, did not contact his caretakers to find out how he was doing, and did not contact DSS to inquire into the possibility of regaining custody of Harry.
Upon her release on 27 December 2011, respondent did not attempt to contact or visit Harry. Nor did she comply with any of the court-ordered conditions set out in the 23 August 2011 adjudication order. In January 2012, respondent attempted to falsify a drug screen, for which she was later convicted. Respondent was incarcerated again on 11 March 2012.
On 23 February 2012, DSS filed a motion to terminate respondent's parental rights. Following a hearing on 23 July 2012, the court entered an order on 22 August 2012 in which it found that grounds existed to terminate respondent's parental rights and concluded that termination was in Harry's best interest. The trial court accordingly terminated respondent's parental rights. Respondent timely appealed to this Court.
Analysis
I. Standard of Review
Termination of parental rights proceedings are conducted in two phases: (1) an adjudication phase governed by N.C. Gen.Stat. § 7B–1109 (2011); and (2) a disposition phase governed by N.C. Gen.Stat. § 7B–1110 (2011). In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001). At the adjudication stage, the petitioner has the burden of proving by clear, cogent, and convincing evidence the existence of at least one of the statutory grounds for termination set out in N.C. Gen.Stat. § 7B–1111 (2011). In re Anderson, 151 N.C.App. 94, 97, 564 S.E.2d 599, 602 (2002). The standard of review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact, in turn, support the court's conclusions of law. In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
If the petitioner meets the burden of proving that at least one ground for termination exists, the trial court moves to the disposition phase to determine whether termination of parental rights is in the best interest of the child. N.C. Gen.Stat. § 7B–1110(a). On appeal, the trial court's decision to terminate parental rights is reviewed under an abuse of discretion standard. Anderson, 151 N.C.App. at 98, 564 S.E.2d at 602. “A trial court may be reversed for abuse of discretion only upon a showing that its actions are ‘manifestly unsupported by reason.’ “ Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).
II. Adjudication Phase
In this case, the trial court found that respondent's parental rights were subject to termination based on three grounds: (1) neglect pursuant to § 7B–1111(a)(1); (2) failure to pay a reasonable portion of the cost of the juvenile's care under § 7B–1111 (a)(3); and (3) willful abandonment pursuant to § 7B–1111(a)(7). Although respondent challenges all three grounds on appeal, we find the first ground—neglect—to be dispositive.
Under N.C. Gen.Stat. § 7B–1111(a)(1), a trial court may terminate parental rights if the parent has “neglected the juvenile .” Chapter 7B of the General Statutes defines a “[n]eglected 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.
N.C. Gen.Stat. § 7B–101(15) (2011).
A “prior adjudication of neglect may be admitted and considered by the trial court in ruling upon a later petition to terminate parental rights on the ground of neglect.” In re Ballard, 311 N.C. 708, 713–14, 319 S.E.2d 227, 231 (1984). The trial court must, however, still focus on “the fitness of the parent to care for the child at the time of the termination proceeding.” Id. at 715, 319 S.E.2d at 232 (emphasis omitted). Where, as here, the child has not been in the parent's custody “for a significant period of time prior to the termination hearing, ... the trial court must also consider evidence of changed conditions in light of the history of neglect by the parent and the probability of a repetition of neglect .” In re Shermer, 156 N.C.App. 281, 286, 576 S.E.2d 403, 407 (2003).
Respondent does not dispute that Harry was, in fact, adjudicated a neglected juvenile by order entered 23 August 2011. Rather, respondent points to her periods of incarceration, arguing that during these periods it was impossible for her to comply with the case plan offered by DSS. As this Court has emphasized, however, “ ‘[i]ncarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision.’ “ In re P.L.P., 173 N.C.App. 1, 10, 618 S.E.2d 241, 247 (2005) (quoting In re Yocum, 158 N.C.App. 198, 207–08, 580 S.E.2d 399, 405 (2003)), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006).
The trial court's unchallenged findings establish that respondent has a significant history of drug and alcohol abuse and domestic violence undermining her ability to care for her children. Indeed, respondent testified that she has a “fifteen-year history involving addi[c]tion to crack cocaine” and that, at no time during the pendency of this action, was she in a position to be able to take care of Harry. In 2000, three of respondent's other children were adjudicated neglected and dependent based on evidence that respondent drank alcohol daily, drank to the point of impairment at least twice a week, and was involved in an incident of domestic violence with Harry's father that resulted in her incarceration. A fourth child was adjudicated neglected and dependent in 2002 after the child tested positive for cocaine and barbiturates at birth. A fifth child, now 28 years old, had been living with her maternal grandmother since she was eight years old due to respondent's struggle with alcohol and substance abuse.
In early 2011, respondent moved with Harry into a residence where methamphetamines were being produced. When the residence was searched by law enforcement officers on 20 February 2011, they found drug paraphernalia and dangerous chemicals inside the house. Inside the bedroom occupied by respondent and Harry, they also found hypodermic needles, knives, and alcoholic beverages. Respondent was not at home during the events of 20 February 2011, having left Harry in the care of her boyfriend. When contacted by DSS, she refused to provide her whereabouts and later refused to submit to at least two requests for a drug screen.
From 20 February 2011 until 29 April 2011, when respondent was first incarcerated, she refused to provide any information to DSS and did not attempt to contact, or visit with, Harry. During her first period of incarceration, which began on 29 April 2011 and ended on 27 December 2011, respondent did not send any cards or letters to Harry and did not attempt to contact Harry's caretakers. Nor did she contact DSS about her son. During this period of incarceration, respondent was twice offered a case plan by DSS; however, respondent refused to accept the case plan each time.
Upon her release from jail, respondent was required by prior court order to (1) report to DSS to provide contact information; (2) schedule a psychological evaluation; (3) obtain a substance abuse assessment; and (4) secure stable housing and employment. Respondent was released on 27 December 2011 and was not incarcerated again until 11 March 2012. During this time, respondent failed to comply with any of the court-ordered conditions.
Also during this period, respondent was convicted of defrauding a drug or alcohol screen, which likely contributed to her incarceration in March 2012. Respondent's attempted adulteration of a drug screen, as the trial court observed, “belies her suggestion that she does not continue to have a substance abuse problem.” Moreover, during the 10–to 11–week period in which respondent was not incarcerated, she did not attempt to contact Harry or his caretakers and provided no financial support.
Because respondent does not challenge any of these findings, they are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). These findings support the trial court's conclusion that Harry is a neglected juvenile under § 7B–1111(a)(1) and that the likelihood of the repetition of neglect—in the event that Harry was to be returned to respondent's custody—is substantial. See P.L.P., 173 N.C.App. at 11, 618 S.E.2d at 247 (affirming termination of parental rights based on neglect where father, who had been incarcerated for several years and would continue to be incarcerated, “(1) ‘could have written’ but did not do so; (2) ‘made no efforts to provide anything for the minor child’; (3) ‘has not provided any love, nurtur[ing] or support for the minor child’; and (4) ‘would continue to neglect the minor child if the child was placed in his care’ ”); In re Bradshaw, 160 N.C.App. 677, 682, 587 S.E.2d 83, 86 (2003) (upholding termination of parental rights where unchallenged findings established that incarcerated respondent “neither provided support for the minor child nor sought any personal contact with or attempted to convey love and affection for the minor child” and “failed to provide any financial aid to [DSS] in support of the minor child”).
Having concluded that the trial court's determination of neglect is supported by the evidence and serves as an appropriate basis for terminating respondent's parental rights, we need not address the two alternative grounds found by the court. See In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 426 (2003) (holding that a finding of one statutory ground is sufficient to support the termination of parental rights). Respondent's argument regarding the adjudication phase of the proceedings in this case is overruled.
III. Disposition Phase
Respondent's final argument is that the trial court abused its discretion in determining that it was in Harry's best interest to terminate respondent's parental rights. Once, as here, the trial court has concluded that one or more grounds exist upon which to base termination, the court must then determine whether termination is in the best interest of the child. N.C. Gen.Stat. § 7B–1110(a) (2011). In making this determination, the court is required to
consider the following criteria and make written findings regarding the following that are relevant:
(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 (a)(1)-(6).
Here, the trial court found that Harry was five years old at the time of the termination hearing and that he had resided outside the custody of either of his parents for approximately 17 months. While Harry had been in a kinship placement for roughly a year, the family ultimately determined that it was unable to adopt him. Consequently, Harry was placed with a prospective adoptive family in May 2012, and the parents have expressed their commitment to adopt him.
The trial court further found that Harry appeared to have adjusted well to the adoptive family, noting that due to the “dearth of maternal or paternal contact, the child has developed a strong bond with the adoptive placement.” He has, as the trial court found, expressed a desire to refer to his adoptive parents as “Mom” and “Dad.” The trial court further found that the adoptive mother would be in a position to assist Harry in getting the vocational therapy he needs due to the fact that she is a teacher and her schedule would largely coincide with Harry's.
The trial court also noted the absence of evidence of “any bond” between respondent and Harry and found that any such bond that might conceivably exist was “attenuated by [respondent's] incarceration and election not to visit with her son in approximately seventeen months.” Based on these findings, the trial court determined that terminating respondent's parental rights would assist in the achievement of the permanent plan of adoption and would be in Harry's best interest.
Respondent does not challenge the trial court's findings or their sufficiency to support its conclusion that termination was in Harry's best interest except to argue that the trial court erred in finding that Harry had developed a “strong bond” with his adoptive family given the fact that (1) he had been in that placement for only approximately two months; and (2) the only evidence of such a bond was based on a single, two-hour visit by a social worker. Contrary to respondent's contention, however, there is ample evidence in the record to support the trial court's finding of fact on this issue.
At the termination hearing, Charity Smith, the DSS social worker assigned to monitor Harry's placement, was questioned about the bond between Harry and his adoptive family. She responded as follows:
It's very strong. I was able to observe him when he was—He was upset at one point while I was there. He went straight to them to seek attention and to seek comfort when he was also there. He's asked me at that point in time if it was okay if he called them “mom” or “dad” while he was living with them. He has said to me on more than one occasion that he enjoys living there.
In addition to Smith's testimony, the trial court had before it Smith's report and the guardian ad litem's report, both of which indicated that a substantial bond was developing between Harry and his adoptive family.
This evidence is sufficient to support the trial court's finding of a strong bond between Harry and the adoptive family. To the extent that respondent appears to be challenging the credibility of Smith's testimony, we reiterate that such determinations are assigned to the trial court, and “it is not for an appellate court to determine de novo the weight and credibility to be given to evidence disclosed by the record on appeal.” Coble v. Coble, 300 N.C. 708, 712–13, 268 S.E.2d 185, 189 (1980).
Respondent also contends that the trial court should have considered whether a relative placement arrangement could have been made prior to terminating her parental rights. The record indicates, however, that DSS did, in fact, pursue two relative placements for Harry—one with his maternal grandmother and the other with his maternal uncle's family—prior to the trial court's changing of the permanent plan from reunification to adoption. Indeed, DSS filed its motion to terminate respondent's parental rights while Harry was placed with his uncle's family. It was only after Harry's relatives determined that they were not in a position to adopt him that he was placed with his adoptive family.
We cannot conclude that the trial court abused its discretion in determining that, in light of two failed family placements resulting in significant instability in Harry's life, termination of respondent's parental rights was in Harry's best interest in order to provide some amount of permanence through his adoption by the family with which he is currently placed. Consequently, the trial court's order is affirmed.
Conclusion
For the reasons stated above, we affirm the trial court's order terminating respondent's parental rights.
AFFIRMED. Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).