In re K.A.D.

• Court: Court of Appeals of North Carolina
• Decided: September 16, 2014
• Docket: 14-407
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e .

NO. COA14-407

NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

IN THE MATTER OF:

K.A.D., Jackson County Minor Child No. 05 JT 28

Appeal by Respondent mother from order entered 13 January

2014 by Judge Roy Wijewickrama in Jackson County District Court.

Heard in the Court of Appeals 18 August 2014.

Mary G. Holliday for Petitioner-Appellee Jackson County Department of Social Services.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender J. Lee Gilliam for Respondent-Appellant mother.

Troutman Sanders LLP, by Gavin B. Parsons, Raleigh, for guardian ad litem.

DILLON, Judge.

Respondent mother appeals from the order terminating her

parental rights to the juvenile K.A.D, contending the trial -2- court erred in concluding two grounds existed to terminate her

parental rights and in determining it was in the juvenile’s best

interests to terminate her parental rights. We affirm.

The history of social services’ involvement with the

juvenile’s parents dates back to 1999. The Jackson County

Department of Social Services (“DSS”) first intervened on behalf

of the juvenile K.A.D. in September of 2004 after receiving a

report of a dispute between the parents that resulted in the

father abandoning Respondent by the side of a highway. When

police assisted Respondent, she did not know where the juvenile

was and admitted she had been using drugs. Both parents

continued using drugs after this incident.

On 7 June 2005, DSS filed a petition alleging the juvenile

was abused and neglected. On 16 September 2005, the trial court

entered an order adjudicating the juvenile neglected and placed

the juvenile in the custody of her paternal step-grandmother.

By a consent order entered 20 April 2006, the parents regained

custody of all three of their children, including the juvenile.

The juvenile resided with the parents from 2006 to 2011.

In February and March of 2011, DSS received reports that

the parents’ problems with domestic violence and drug abuse had

resurfaced. On 11 March 2011, the juvenile and one of the -3- parents’ other children were placed in kinship care. DSS

substantiated the reports of domestic violence and substance

abuse on 15 March 2011. On 19 April 2011, the parents agreed to

a Family Services Agreement requiring them to provide safe and

stable housing for the children and a sober adult caretaker at

all times, to abstain from engaging in physical violence in the

presence of the children, to participate in substance abuse

treatment, and to allow DSS to conduct home visits. The parents

nonetheless continued to engage in domestic violence and

substance abuse, and Respondent violated her probation. The

juveniles were placed in non-secure custody.

On 20 September 2011, the trial court entered a consent

order adjudicating the juvenile and the other children

neglected. At disposition, the court ordered Respondent to

submit to drug screens and refrain from substance abuse; allow

DSS into her home; submit to mental health and substance abuse

assessments and follow any recommendations; complete parenting

classes; participate in the juveniles’ therapy and counseling as

requested; refrain from engaging in domestic violence; maintain

adequate housing and income; and participate in family

counseling, visitation following her release from prison, and

intensive home services. -4- The juvenile and the other two children were placed in a

trial home placement, which was disrupted when the parents

resumed using controlled substances and engaging in domestic

violence. After a 14 February 2013 hearing, the permanent plan

for the juvenile was changed to adoption. On 26 April 2013, DSS

filed a petition to terminate Respondent’s parental rights based

on neglect (N.C. Gen. Stat. § 7B-1111(a)(1) (2013)) and willful

failure to make reasonable progress (N.C. Gen. Stat. § 7B1-

1111(a)(2) (2013)).

The matter came on for hearing on 18 November 2013. On 13

January 2014, the trial court entered an order terminating

Respondent’s parental rights. The trial court concluded that

the juvenile was neglected, Respondent had failed to make

reasonable progress, and termination of Respondent’s parental

rights was in the juvenile’s best interests. Respondent now

appeals.

In her first two arguments, Respondent challenges the trial

court’s conclusions that grounds existed to terminate her

parental rights pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1) and

(2). At the adjudicatory stage of a termination of parental

rights hearing, the burden is on the petitioner to prove by

clear, cogent, and convincing evidence that at least one ground -5- for termination exists. N.C. Gen. Stat. § 7B-1109(f) (2013); In

re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908

(2001). Our review on appeal is limited to determining whether

clear, cogent, and convincing evidence exists to support the

findings of fact, and whether the findings of fact support the

conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536

S.E.2d 838, 840 (2000), appeal dismissed, disc. review denied,

353 N.C. 374, 547 S.E.2d 9 (2001).

“When the trial court is the trier of fact, the court is

empowered to assign weight to the evidence presented at the

trial as it deems appropriate.” In re Oghenekevebe, 123 N.C.

App. 434, 439, 473 S.E.2d 393, 397 (1996). “[F]indings of fact

made by the trial court . . . are conclusive on appeal if there

is evidence to support them.” In re H.S.F., 182 N.C. App. 739,

742, 645 S.E.2d 383, 384 (2007) (internal marks omitted).

“[W]here no exception is taken to a finding of fact by the trial

court, the finding is presumed to be supported by competent

evidence and is binding on appeal . . . .” In re S.D.J., 192

N.C. App. 478, 486, 665 S.E.2d 818, 824 (2008) (internal marks

and citation omitted).

Although the trial court concluded two grounds existed to

terminate Respondent’s parental rights, we find it dispositive -6- that the evidence supports termination of her parental rights

based on neglect. See In re Humphrey, 156 N.C. App. 533, 540-

41, 577 S.E.2d 421, 426-27 (2003) (finding only one statutory

ground necessary to support termination of parental rights).

N.C. Gen. Stat. § 7B-101(15) (2013) defines a neglected

juvenile as one “who does not receive proper care, supervision,

or discipline from the juvenile’s parent, guardian, custodian,

or caretaker . . . .” See also N.C. Gen. Stat. § 7B-1111(a)(1)

(2013) (providing for the termination of parental rights based

on neglect).

“Neglect must exist at the time of the termination hearing

[.]” In re C.W. & J.W., 182 N.C. App. 214, 220, 641 S.E.2d 725,

729 (2007). However, where “the parent has been separated from

the child for an extended period of time, the petitioner must

show that the parent has neglected the child in the past and

that the parent is likely to neglect the child in the future.”

Id. Even then, “[i]t is not essential that there be evidence of

culpable neglect following the initial adjudication.” In re

Caldwell, 75 N.C. App. 299, 302, 330 S.E.2d 513, 516 (1985).

Our Supreme Court has held:

[E]vidence of neglect by a parent prior to losing custody of a child – including an adjudication of such neglect – is admissible in subsequent proceedings to terminate -7- parental rights. . . . However, termination of parental rights for neglect may not be based solely on conditions which existed in the distant past but no longer exist. . . . The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding.

In re Manus, 82 N.C. App. 340, 348, 346 S.E.2d 289, 294 (1986)

(internal marks and citations omitted).

In the present case, the trial court found the juvenile had

previously been adjudicated neglected. Thus, the issue on

appeal is whether its findings of fact support its conclusion

that neglect was likely to be repeated in the future.

Respondent contends that the trial court’s findings of fact

address conditions only as they existed in the distant past. We

disagree.

The trial court found that Respondent had failed to address

the domestic violence and substance abuse issues that instigated

DSS’s involvement with the family. While acknowledging that

Respondent had made some progress on parts of her case plan, the

trial court cited numerous instances where the juvenile was

exposed to or affected by domestic violence between the parents,

as well as Respondent’s repeated failure to appear for drug

screens, one refusal to submit to a drug screen, and two

instances where drug screens yielded positive results, in -8- violation of the 20 September 2011 consent order. The trial

court also made findings describing Respondent’s unstable

housing situation and her failure to secure steady employment.

In support of her argument that the trial court’s findings

only address the conditions as they existed in the distant past,

Respondent relies on In re C.C. & J.C., 173 N.C. App. 375, 618

S.E.2d 813 (2005) and In re G.B.R. __ N.C. App. __, 725 S.E.2d

387 (2012). In those cases the trial court’s findings only

addressed behavior that took place years prior to the

termination hearing. See G.B.R., __ N.C. App. at __, 725 S.E.2d

at 392-93; C.C. & J.C., 173 N.C. App. at 382, 618 S.E.2d at 818.

In the present case, the trial court’s findings addressed

Respondent’s specific acts and omissions as of May 2013, just a

few months prior to the termination hearing. Moreover, the

social worker’s testimony at the termination hearing tended to

show that Respondent avoided contact with DSS between June and

October of 2013, just prior to the termination hearing, limiting

the availability of any testimony regarding her behavior during

the months leading up to the hearing. Accordingly, we hold that

the evidence supports the trial court’s findings of fact which,

in turn, support the trial court’s conclusion that the neglect

was likely to be repeated. -9- Respondent next contends the trial court abused its

discretion in concluding that termination of parental rights was

in the juvenile’s best interests. Rather than challenging the

trial court’s findings of fact, Respondent instead asserts that

the trial court made its findings under a misapprehension of

law, rendering its decision an abuse of discretion. We

Once the trial court has determined that a ground for

termination exists, it moves to the disposition stage,

determining whether termination is in the best interests of the

juvenile. N.C. Gen. Stat. § 7B-1110(a) (2013). The trial court

must consider the following factors in determining the best

interests of the juvenile:

(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. -10-

Id. The trial court must make written findings addressing the

relevant factors. In re J.L.H., __ N.C. App. __, __, 741 S.E.2d

333, 337-38 (2012). We review the trial court’s decision for an

abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564

S.E.2d 599, 602 (2002).

In the present case, the trial court made detailed findings

of fact addressing all of the relevant statutory factors.

Respondent concedes as much in her brief. Respondent

nevertheless points to the phrasing of one of the trial court’s

conclusions of law, claiming it demonstrates that the trial

court applied an incorrect legal standard:

3. That it is in the best interest of the Juvenile for the parental rights of the Respondent Mother to be terminated. The Court can find no reason that the best interests of the Juvenile require that Respondent Mother’s parental rights not be terminated.

(emphasis added). The second sentence of this conclusion is in

substance a restatement of the first, and “[w]e will not presume

error based on an [isolated] errant sentence,” regardless.

Green v. Kelischek, __ N.C. App. __, __, 759 S.E.2d 106, 114

(2014). Thus, the trial court’s phrasing does not show that it

misapprehended the law, particularly when read in the context of

the rest of the dispositional portion of the termination order. -11- Accordingly, we find no abuse of discretion in the trial court’s

decision to terminate Respondent’s parental rights.

AFFIRMED.

Judges HUNTER, Robert C. and DAVIS concur.

Report per Rule 30(e).