In re: C.T.M. & C.S.F.

• Court: Court of Appeals of North Carolina
• Decided: October 6, 2015
• Docket: 15-494
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-494

Filed: 6 October 2015

Rockingham County, Nos. 10 JT 147, 13 JT 41

IN THE MATTER OF: C.T.M., C.S.F., Jr.

Appeal by respondents from orders filed 5 November 2014 by Judge William

F. Southern, III in Rockingham County District Court. Heard in the Court of Appeals

14 September 2015.

No brief filed by Rockingham County Department of Social Services, petitioner- appellee.

J. Thomas Diepenbrock for mother, respondent-appellant.

Peter Wood for father, respondent-appellant.

Michael A. Kaeding for guardian ad litem.

ELMORE, Judge.

The parents of C.T.M. (hereinafter referenced by pseudonym of “Carl”) and

C.S.F., Jr. (hereinafter referenced by pseudonym of “Clarence”) appeal from orders

terminating their parental rights to their sons. We find no error and affirm the trial

court’s orders.

I. Background IN RE: C.T.M. & C.S.F., JR.

Opinion of the Court

At the age of six months, Carl was removed from his parents’ home and placed

in the custody of the Rockingham County Department of Social Services (DSS) on 23

September 2010 upon the filing of a juvenile petition by DSS. The court adjudicated

Carl to be both neglected and dependent on 23 November 2010 based upon several

incidents of domestic violence between the parents, sometimes in Carl’s presence.

A trial placement of Carl in respondent-mother’s home was attempted in

January 2012 and ended on 12 March 2012 after the parents engaged in another

episode of domestic violence in which respondent-father head-butted respondent-

mother, who was pregnant with Clarence, and threw her to the floor. Carl was

present in the home during this incident.

Respondent-mother subsequently gave birth to Clarence, and after his birth a

second home placement of Carl with his mother was implemented on 29 November

2012. This placement, too, ended on 9 April 2013 because of domestic violence

between the parents that occurred during the prior two days. Specifically,

respondent-mother struck or “nudged” respondent-father with her car and punched

respondent-father on 7 April 2013. The next day, respondent-mother scratched

respondent-father’s car with a knife. Respondent-father grabbed the knife from her

and retaliated by doing the same to her car. He then took a piece of wood

approximately the size of a baseball bat and threw it at respondent-mother’s car,

shattering its windshield. The infant Clarence was in the vehicle at the time.

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Respondent-father removed Clarence from the car, and respondent-mother allegedly

slapped respondent-father while he was holding Clarence.

On 10 April 2013, DSS filed a petition alleging that Clarence was a neglected

juvenile. The court adjudicated Clarence to be a neglected juvenile on 30 July 2013.

The court also established a permanent plan of adoption for both Clarence and Carl.

DSS filed motions to terminate parental rights on 20 November 2013. After

conducting hearings on 6 and 17 February 2014, the court filed orders on 5 November

2014 terminating the parental rights of both parents. The court terminated the

parental rights of each parent to Carl on grounds that they each (1) neglected the

child and (2) willfully left the child in foster care for more than twelve months without

making satisfactory progress in correcting the conditions which led to the removal of

the child. As an additional basis for terminating the parental rights of respondent-

mother to Carl, the court concluded respondent-mother failed to provide a reasonable

portion of the cost of care for the child for a period of at least six months while the

child was in foster care. The court terminated the parental rights of each parent to

Clarence on grounds that they each (1) neglected the child and (2) failed to provide a

reasonable portion of the cost of care for the child for a period of at least six months

while he was in foster care.

Both respondent-mother and respondent-father appeal from the orders

terminating their parental rights, arguing that the findings of fact are not supported

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by clear, cogent, and convincing evidence and the conclusions of law, in turn, are not

supported by the findings of fact.

II. Analysis

There are two stages involved in termination of parental rights proceedings:

adjudication and disposition. In re D.R.B., 182 N.C. App. 733, 735, 643 S.E.2d 77, 79

(2007). In the adjudication stage, the trial court “examines the evidence and

determines whether sufficient grounds exist under N.C. Gen. Stat. § 7B-1111 to

warrant termination of parental rights.” In re T.D.P., 164 N.C. App. 287, 288, 595

S.E.2d 735, 736 (2004), aff’d per curiam, 359 N.C. 405, 610 S.E.2d 199 (2005). If the

court determines that one or more grounds for terminating a parent’s rights exists, it

then proceeds to the disposition phase and makes a discretionary determination of

whether terminating the parent’s rights is in the juvenile’s best interest. N.C. Gen.

Stat. § 7B-1110(a) (2013).

“The 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 (quoting In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d

754, 758 (1984)). We review de novo the trial court’s conclusions of law. In re S.N.,

194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008) (quoting Mann Contractors, Inc. v.

Flair with Goldsmith Consultants-II, Inc., 135 N.C. App. 772, 775, 522 S.E.2d 118,

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121 (1999)), aff’d per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009). “We 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.” In re Shepard,

162 N.C. App. at 221–22, 591 S.E.2d at 6.

We first address the sole common ground upon which each parent’s parental

rights was terminated: neglect. Parental rights may be terminated pursuant to N.C.

Gen. Stat. § 7B-1111(a)(1) if the trial court concludes that the parent has abused or

neglected the child. N.C. Gen. Stat. § 7B-1111(a)(1) (2013). A child is neglected when

the parent fails to provide proper care, supervision, discipline or a safe environment.

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)

(citing In re Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232 (1984)). The trial court

must consider evidence of any changed circumstances since the time of a prior

adjudication and the probability that the neglect will be repeated if the child is

returned to the parent’s care. In re Ballard, 311 N.C. at 716, 319 S.E.2d at 232. In

predicting the probability of repeated neglect, 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).

The court should consider whether the parent has made “meaningful progress in

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eliminating the conditions that led to the removal of [the] children.” In re Leftwich,

135 N.C. App. 67, 72, 518 S.E.2d 799, 803 (1999).

Both parents take issue with finding of fact number 14, contained in each

order, in which the trial court found as follows:

[Respondent-mother] testified that she currently has no relationship with [respondent-father], and the Court did not receive any evidence to the contrary. Moreover, no evidence was presented of any further domestic violence since the April 2013 incidents. Defense counsel therefore urged the Court to consider the past domestic violence between them to no longer be a concern. The court nevertheless finds, however, that there is a high likelihood of repeated neglect if this child were returned to either parent. Both parents have demonstrated over a long period of time a persistent unwillingness or inability to make necessary changes that would allow them to safely parent, despite participating in numerous services intended to help them. The extremely poor impulse control each parent has shown over the course of this case has not in any way been addressed by either parent since April 2013, and is likely to result in improper care of this child if he were to be returned, whether in the context of domestic violence between the parents, or in some new fashion.

The parents contend that the finding that there is a high probability of repeated

neglect if the children are returned to either parent is not supported by clear and

convincing evidence, is contrary to the evidence, and is contradicted by the court’s

findings that the parents no longer have a relationship, have not engaged in domestic

violence since April 2013, and have made efforts to comply with their case plans.

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In a termination of parental rights proceeding, the trial court assigns weight

to the evidence as it deems appropriate and resolves conflicts in the evidence. In re

Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 397 (1996). “If different

inferences may be drawn from the evidence, the trial judge must determine which

inferences shall be drawn and which shall be rejected.” In re Gleisner, 141 N.C. App.

475, 480, 539 S.E.2d 362, 365–66 (2000). The trial court’s findings of fact are binding

on appeal “where there is some evidence to support those findings, even though the

evidence might sustain findings to the contrary.” In re Montgomery, 311 N.C. 101,

110–11, 316 S.E.2d 246, 252–53 (1984). Findings of fact that are not specifically

challenged on appeal are also binding. In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d

403, 404–05 (2005) (citing Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731

(1991)).

In the termination orders, the trial court prefaced its findings of fact by noting

that it had reviewed prior orders entered in each juvenile’s case, testimony of

numerous witnesses, and exhibits. See In re M.N.C., 176 N.C. App. 114, 120, 625

S.E.2d 627, 632 (2006) (explaining that a court may consider and take judicial notice

of prior orders and matters contained in the court file in a termination of parental

rights proceeding). Respondents do not challenge the trial court’s findings of fact in

the termination orders regarding their extensive history of domestic violence. Nor do

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they challenge the findings that the domestic violence between them continued

despite “significant efforts” by DSS to address the domestic violence issues.

The evidence reflects that not all incidents of domestic violence were directed

by one parent toward the other. For example, after respondent-father beat her while

she was holding Carl on 8 August 2010, respondent-mother took Carl with her to live

with her father and stepmother. While residing there, respondent-mother physically

fought her stepmother and brother. During a supervised visitation with Carl on 11

April 2012 at DSS, respondent-father was asked by DSS to leave because he had an

“explosive temper” and began using profanity when the child refused to interact with

him.

In its permanency planning order entered after the 11 July 2013 review

hearing, the trial court found that despite compliance by each parent with various

aspects of the parent’s services agreement, including participation in a domestic

violence counseling program, the domestic violence between the parents had

escalated since November 2012. In January 2013, the court recommended that both

parents attend counseling with therapist Jay Slayden. Respondent-mother attended

two sessions with Mr. Slayden in March 2013 but then missed several appointments.

Respondent-father never attended a session with Mr. Slayden and never even called

to make an appointment. The DSS social worker testified that even though

respondents had separated as a couple as of the time of the termination hearing,

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“domestic violence . . . has a history of repeating itself from one situation to another.

That is the point of taking the counseling, so you don’t engage with another partner

to do the same kind of behavior.”

The finding that each parent has poor impulse control is supported by each

parent’s own testimony. Concerning the incident in April 2013, respondent-mother

testified on direct examination as follows:

Q. It was important to you, then, that you do everything you could to avoid another domestic violence incident that would jeopardize your trial home placement, wasn’t it?

A. Yes. I tried. I tried talking to [respondent-father], I said.

Q. You did the best you could?

A. No, I didn’t. No, I didn’t. I came up there. I went to his property that we were supposed to live on together, and I just—I ruined it. I let my—I let my anger get the best of me. I’m sorry.

Concerning this same incident, respondent-father testified on cross-examination as

follows:

Q. Do you think that incident that happened in April of 2013 was significant?

A. What does “significant” mean?

Q. Do you think it was important?

A. Important? I mean, it was important, I guess.

Q. Did you try to take the knife out of [respondent- mother’s] hand?

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A. Yeah, I tried to take it out.

Q. How come?

A. Because she keyed my car.

Q. With the knife?

A. Yes.

Q. And what were you going to do with the knife when you got it away from her?

A. Key her car.

Q. Did you take a log and smash a window in her car?

Q. Why did you do that?

A. I can’t exactly remember what boiled down to that point. I just remember doing it.

Q. Were you upset?

Q. Okay. You made statements to [respondent-mother] about what you were going to do to her; you threatened her?

A. I don’t remember making no threats to her.

Q. Did she threaten you?

A. No, I don’t think she threatened me.

Q. What was she doing when you smashed the window out

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of her car?

A. Just all I can remember was her running her mouth.

Q. Okay. What does that mean? What was she saying?

A. I can’t recall exactly what all she was saying. I just know she was talking junk.

Q. You knew that the first trial home placement ended as a result—or as a consequence of a domestic violence incident, right?

A. Yes, sir.

Q. You knew that both children were placed with [respondent-mother] on a trial home placement?

Q. You knew that an incident of domestic violence would end that?

Q. Were you thinking about that when you decided to put the—break the window out of her car?

A. I think I testified last time that I didn’t even know the child was in the car until the window was busted.

Q. Where did you think the child was?

A. At the time, I really wasn’t thinking where the child was. I was just thinking about her having the knife and my car getting scratched.

Later in his testimony, respondent-father acknowledged that his “anger kind of took

over” during the April 2013 incident. When asked whether he had any counseling

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since then, respondent-father stated that he “figured it was no point to continue on

trying to seek counseling with that dude for family counseling when we weren’t

together.” Respondent-father’s testimony suggests that he lacked awareness of his

need for counseling to help him manage his anger and control his impulses. His

statement that he “guess[ed]” the incident was important suggests that he failed to

appreciate the full import of the incident and the impact domestic violence or poor

anger management could have on his children, and also the need for counseling to

help him address these issues.

Respondents also challenge the sufficiency of the evidence and findings of fact

to support the other grounds for termination of parental rights adjudicated by the

court. As only one ground is required to terminate parental rights, it is not necessary

for us to address the remaining grounds. In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d

241, 246 (2005) (quoting In re Clark, 159 N.C. App. 75, 78 n.3, 582 S.E.2d 657, 659

n.3 (2003)), aff’d per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006).

III. Conclusion

We conclude that finding of fact number 14 is supported by clear, cogent, and

convincing evidence, and that the findings of fact, in turn, support the conclusion of

law in each order that respondents have neglected the juveniles and that there is a

high likelihood of repeated neglect if the juveniles were returned to the respondents.

AFFIRMED.

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Judges DILLON and DIETZ concur.

Report per Rule 30(e).

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