In re A.R.S.

• Court: Court of Appeals of North Carolina
• Decided: May 20, 2014
• Docket: 13-1300
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA13-1300 NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

IN THE MATTER OF:

New Hanover County Nos. 11 JT 73-75 A.R.S., E.D.S., M.S.S.

Appeal by respondent from order entered 13 September 2013

by Judge J.H. Corpening, II in New Hanover County District

Court. Heard in the Court of Appeals 28 April 2014.

Regina Floyd-Davis for petitioner-appellee New Hanover County Department of Social Services.

Parker Poe Adams & Bernstein LLP, by Deborah L. Edney and Sarah Fulton Hutchins, for guardian ad litem.

Assistant Appellate Defender Joyce L. Terres for respondent-appellant.

HUNTER, Robert C., Judge.

Respondent, the mother of the juveniles A.R.S., E.D.S., and

M.S.S. (“Amy, Emily, and Michael”)1, appeals from an order

1 The pseudonyms “Amy, Emily, and Michael” are used throughout this opinion to protect the juveniles’ privacy and for ease of reading. -2- terminating her parental rights. After careful review, we

affirm.

Background

Respondent and C.S. (“Charles”)2, the father of the

juveniles at issue in this appeal, were married in July 2003.

Prior to her marriage to Charles, respondent had three children,

C.F.H., C.H.W., and P.R.W. (“Cindy, Carl and Peggy”).3 On 18

March 2011, the New Hanover County Department of Social Services

(“DSS”) filed a petition alleging that Amy, Emily, Michael,

Cindy, Carl and Peggy were neglected juveniles. DSS alleged

that respondent and Charles had a “ten year history of domestic

violence, with numerous incidents occurring in the presence of

the children.” DSS recounted that, while the family was living

in Tennessee, Cindy, Carl, Peggy and Amy had been placed in

foster care due to domestic violence. Charles was convicted of

felony child abuse for a physical assault on Carl and had also

physically assaulted Cindy. Respondent was directed by the

2 The pseudonym “Charles” is used throughout this opinion for ease of reading. 3 The pseudonyms “Cindy, Carl and Peggy” are used throughout this opinion to protect the juveniles’ privacy and for ease of reading. -3- juvenile court in Tennessee to “choose between [Charles] and the

children.” The juveniles were returned to respondent’s care in

December 2009.

In 2010, respondent moved to New Hanover County in North

Carolina. In October 2010, while pregnant with twins Emily and

Michael, respondent transported Charles to New Hanover County

and paid for his separate lodging. DSS, upon learning of the

previous history of domestic violence, put a safety plan into

effect requiring Charles’s contact with Cindy, Carl and Peggy to

be supervised by someone other than respondent. Charles was

eventually allowed unsupervised contact with his biological

children, Amy, Emily, and Michael. However, DSS later learned

that Charles was having unsupervised contact with Cindy, Carl

and Peggy.

DSS alleged that Cindy, Carl and Peggy were “in fear of

[Charles] and fear for the safety of their mother as well. They

appear depressed and [Cindy] has expressed suicidal ideation.”

DSS claimed that Charles continued to be verbally abusive to all

members of the family and had physically assaulted Cindy. DSS

further alleged that respondent had failed to protect the

children from Charles’s abuse and had chosen to continue her -4- relationship with him. Accordingly, the children were removed

from respondent’s custody.

On 13 May 2011, all six juveniles were adjudicated

neglected based on stipulations by respondent and Charles to the

allegations in the petition. The court ordered that custody

remain with DSS. Additionally, the court ordered that Charles

was to have no contact with Cindy, Carl and Peggy, and that

respondent and Charles were to have separate visitations with

Amy, Emily, and Michael.

On 7 November 2011, the court entered a review order in

which it expressed concern regarding respondent’s “dishonesty

with her children” about her relationship with Charles. The

court found that respondent had indicated that she had obtained

separate housing from Charles and had severed the relationship,

but in fact she continued to reside with him until 6 September

2011, at which time she moved to a domestic violence shelter.

Despite moving to the shelter, respondent continued to maintain

a relationship with Charles, while at the same time telling her

children the relationship was over.

Another review hearing was held on 2 May 2012. The trial

court found that DSS received a Child Protective Services report

on 12 January 2012 alleging sexual abuse perpetrated by Charles -5- upon Cindy. The allegation was substantiated by DSS, and DSS

substantiated an allegation of neglect as to respondent for

leaving her children with Charles in violation of a safety plan

then in existence. The trial court also found as fact that

respondent and Charles had in fact maintained a relationship

from March of 2011 through 4 February 2012, and that respondent

had not been truthful with the court regarding their continued

contact. The trial court relieved DSS of further reunification

efforts and changed the permanent plan for the juveniles to

custody or guardianship with a relative or court-approved

caretaker.

At a review hearing held on 3 January 2013, respondent

requested that the permanent plan be changed to reunification.

The court noted in its order that on 18 October 2012, Charles

committed suicide. The court expressed its opinion that

Charles’s death was a “significant event, as opposed to a

substantial change in circumstances.” The court continued to be

concerned about respondent’s “failure to prioritize her

children, and poor decision-making. She failed to keep the

children safe in the past, and they are still at risk.” The

court declined to change the permanent plan for the juveniles to

reunification. Following a review hearing on 4 April 2013, the -6- court changed the permanent plan for Amy, Emily, and Michael to

adoption.

On 4 June 2013, DSS filed a petition to terminate

respondent’s parental rights to Amy, Emily, and Michael. On 13

September 2013, the trial court entered an order terminating

respondent’s parental rights to Amy, Emily, and Michael after

concluding that grounds existed pursuant to N.C. Gen. Stat. §

7B-1111(a)(1) and (2) (2013). Respondent appeals.

Discussion

We first consider respondent’s argument that the trial

court erred by concluding that grounds existed to terminate her

parental rights. We disagree.

N.C. Gen. Stat. § 7B-1111 sets out the statutory grounds

for terminating parental rights. A finding of any one of the

separately enumerated grounds is sufficient to support

termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230,

233-34 (1990). “The standard of appellate review is whether the

trial court’s findings of fact are supported by clear, cogent,

and convincing evidence and whether the findings of fact support

the conclusions of law.” In re D.J.D., 171 N.C. App. 230, 238,

615 S.E.2d 26, 32 (2005) (citing In re Huff, 140 N.C. App. 288,

291, 536 S.E.2d 838, 840 (2000), disc. review denied, appeal -7- dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001)).

In the instant case, the trial court concluded that grounds

existed to terminate respondent’s parental rights based on

neglect. N.C. Gen. Stat. § 7B-1111(a)(1). “Neglected juvenile”

is defined in N.C. Gen. Stat. § 7B-101(15) 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) (2013). “A finding of neglect

sufficient to terminate parental rights must be based on

evidence showing neglect at the time of the termination

proceeding.” In re Young, 346 N.C. 244, 248, 485 S.E.2d 612,

615 (1997). Where, as here, a child has been removed from the

parent’s custody before the termination hearing, and the

petitioner presents evidence of prior neglect, then “[t]he trial

court must also consider any evidence of changed conditions in

light of the evidence of prior neglect and the probability of a

repetition of neglect.” In re Ballard, 311 N.C. 708, 715, 319

S.E.2d 227, 232 (1984). Additionally, the determination of

whether a child is neglected “must of necessity be predictive in -8- nature, as the trial court must assess whether there is a

substantial risk of future abuse or neglect of a child based on

the historical facts of the case.” In re McLean, 135 N.C. App.

387, 396, 521 S.E.2d 121, 127 (1999).

Here, the trial court first made substantial findings of

fact concerning the family’s history in Tennessee, which

included: domestic violence perpetrated by respondent and

Charles in front of their children; the removal of respondent’s

children from her custody; entry of an order of protection

prohibiting Charles from having contact with respondent’s

children; respondent’s withdrawing the order of protection;

Charles’s conviction of child abuse and domestic assault; entry

of a “no-contact” order by a Tennessee juvenile court

prohibiting contact between Charles and respondent’s children;

subsequent violation of the no-contact order by Charles; removal

of respondent’s children from her care due to her allowing

contact between her children and Charles; and restoration of

custody to respondent in 2009.

The trial court further found as fact that Charles filed a

motion in Tennessee to lift the no-contact order, “indicating

his intent ‘to move to North Carolina with [respondent] and the

children, to get a residence in North Carolina and to get a job -9- in North Carolina.’” The motion was denied, with the exception

that Charles was allowed unsupervised contact only with Amy.

Nevertheless, as found by the court, in October 2010, respondent

transported Charles to North Carolina and they resided together

with the juveniles as a family. The court found that

respondent’s “actions clearly violated the Tennessee Court

Order.” The juveniles were subsequently adjudicated neglected.

The trial court made the following findings concerning

respondent’s actions occurring after the adjudication of

neglect:

17. That approximately three months later [after the adjudication of neglect], at a hearing held on 20 July 2011, [respondent] appeared to be making progress. . . . She presented to the Court a twelve month lease . . . for a home located in New Hanover County, separate and apart from her husband, [Charles]. She maintained employment, but had not participated in any parenting classes.

18. That subsequent to the July hearing, the Department learned that [respondent] was not truthful with the Court. She had not and did not move into the residence presented via lease, but in fact, maintained housing with [Charles]. She was dishonest with [Cindy, Carl and Peggy] about the continued living arrangements and continued relationship with [Charles], which led to continued trust issues for the Juveniles . . . . -10- 19. That [respondent] continued to reside with [Charles] until on or about 06 September 2011, when she moved to the Domestic Violence Shelter. Thereafter, she continued to have contact with [Charles]. She was observed at [Charles’s] residence on two occasions. She continued to deny the relationship to [Cindy, Carl and Peggy]. At the review hearing held on 10 October 2011, [respondent] presented to the Court that she had secured housing at Greentree Apartments. She has yet to reside in Greentree [A]partments, and has not participated in any parenting classes. She has participated in family therapy; however, there has been inconsistent participation in individual therapy.

. . . .

21. That on or about 17 February 2012, [Charles] contacted [DSS] and provided relevant information. [Charles] and [respondent] had maintained a relationship from September of 2011 until [Charles] was incarcerated in February of 2012. [Charles] was hospitalized in Chapel Hill, North Carolina, and [respondent] visited him on several occasions. [Respondent] maintained telephone contact with [Charles] through use of [Charles’s] land line, which was unknown to the Department. [Charles] frequented [respondent’s] residence during said period, and met in other places, so as not to alert the Department. That [respondent] has been dishonest with the Court, the Department, the Guardian Ad Litem, and [Cindy, Carl and Peggy].

23. That [Charles] committed suicide on or about 18 October 2012. Despite having the children [Cindy, Carl and Peggy] removed -11- from Respondent-Mother’s custody due to their physical abuse by [Charles], and having been aware of [Charles’s] sexual abuse of [Cindy], [respondent] presented the older children with amulets containing [Charles’s] ashes, which could be worn around their necks. [Respondent] denies constructing the amulets, but did in fact present them to the children.

26. That [Charles] untimely demise is noted; however, [respondent] has continued a pattern of placing her self-interests ahead of her children’s best interests for the past five (5) years. The family’s involvement with the Tennessee Department of Children’s Services’ [sic] began in 2008, and [respondent’s] involvement with [DSS] has continued since 2010. This pattern is indicative of a high probability of the repetition of neglect.

Respondent does not challenge the above findings of fact

and they are binding on appeal. Koufman v. Koufman, 330 N.C.

93, 97, 408 S.E.2d 729, 731 (1991). Based on these findings, we

conclude that grounds existed pursuant to N.C. Gen. Stat. § 7B-

1111(a)(1) to terminate respondent’s parental rights.

Respondent additionally argues that the trial court erred

by concluding that grounds existed pursuant to N.C. Gen. Stat. §

7B-1111(a)(2) to terminate her parental rights. However,

because we conclude that grounds existed pursuant to N.C. Gen.

Stat. § 7B-1111(a)(1) to support the trial court’s order, we -12- need not address the remaining ground found by the trial court

to support termination. Taylor, 97 N.C. App. at 64, 387 S.E.2d

at 233-34.

Respondent next argues that the trial court abused its

discretion when it concluded that termination of her parental

rights was in the best interests of the juveniles. We disagree.

Once statutory grounds for termination have been

established, the trial court is required to “determine whether

terminating the parent’s rights is in the juvenile’s best

interest.” N.C. Gen. Stat. § 7B-1110(a) (2013). When

determining whether it is in the juvenile’s best interest to

terminate the parent’s rights, the trial court is required to

make written findings regarding the relevant factors enunciated

in N.C. Gen. Stat. § 7B-1110(a). Id. “We review the trial

court’s decision to terminate parental rights for abuse of

discretion.” In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d

599, 602 (2002).

Here, in its dispositional findings, the trial court found

the following facts relating to the factors stated in N.C. Gen.

Stat. § 7B-1110(a):

28. That maternal and paternal relatives have been considered for placement of the Juveniles, and it is not in their best interests to be placed with relatives. The -13- Juveniles should remain in this community wherein they can continue the strong bond and relationship, which they share with [Cindy, Carl and Peggy] through visitation. The children do not have a strong bond with any of the relatives previously considered by this Court.

29. That [Amy] has been in her current placement since April 1, of 2011. She is five years old, and has been in and out of home placement for two years and five months. This is her second time in foster care since birth. [Emily and Michael] are two and a half year old twins, have been in placement together since March of 2011, and were moved into their current placement with their sister, [Amy] in April of this year. [Amy] has a strong bond with the foster parents, and [Emily and Michael] have developed a bond in the short time they have been placed. [Amy, Emily and Michael] have a strong sibling bond. The Juveniles have a bond with their mother; however, it has been diminished by the length of time in out of home placements. The twins were three (3) months old when they were removed from [respondent]. The foster parents have encouraged and arranged visitations for [Amy, Michael, Emily, Cindy, Carl and Peggy and] have indicated their willingness to continue[] said sibling visitations.

30. That [Amy, Emily and Michael] are young children, and their current foster parents would like to adopt all three of them.

Respondent contends that the trial court should have given

greater consideration to placement with the paternal

grandparents. However, such consideration was not required.

See In re M.M., 200 N.C. App. 248, 258, 684 S.E.2d 463, 469-70 -14- (2009) (“A trial court may, but is not required to, consider the

availability of a relative placement during the dispositional

phase of a hearing to terminate parental rights.”), disc. review

denied, 364 N.C. 241, 698 S.E.2d 401 (2010).

Respondent further contends that the court failed to

consider the impact of unenforceability of an order for sibling

visitation should the juveniles be adopted by their foster

parents. We conclude, however, that the trial court was not

statutorily required to consider the enforceability of post-

adoption sibling visitation. Nevertheless, it is apparent from

the court’s findings that the court considered the importance of

sibling visitation, and concluded that it was likely to occur,

regardless of its legal enforceability.

Conclusion

Based on the court’s dispositional findings of fact, we

conclude that the trial court’s determination that it was in the

juveniles’ best interests to terminate respondent’s parental

rights was not manifestly unsupported by reason. Accordingly,

we affirm.

AFFIRMED.

Judges GEER and McCULLOUGH concur. -15- Report per Rule 30(e).