An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-206 NORTH CAROLINA COURT OF APPEALS Filed: 5 August 2014 IN THE MATTER OF: Mitchell County No. 09 J 32 K.B.G.
Appeal by respondent from order entered 4 November 2013 by
Judge Alexander Lyerly in Mitchell County District Court. Heard
in the Court of Appeals 8 July 2014.
Hal G. Harrison and R. Ben Harrison for petitioner Mitchell County Department of Social Services.
Michael N. Tousey for guardian ad litem.
Appellate Defender Staples Hughes, by Assistant Appellate Defender J. Lee Gilliam, for respondent-appellant.
ERVIN, Judge.
Respondent-Mother Michelle B. appeals from an order
terminating her parental rights in her daughter, K.B.G.1 On
appeal, Respondent-Mother contends that the trial court erred by
considering new evidence on remand from a prior decision of this
Court without affording her an equivalent opportunity to present
additional evidence, by making findings of fact that lack
adequate evidentiary support and fail to support the trial
1 K.B.G. will be referred to throughout the remainder of this opinion as “Kayla,” a pseudonym used for ease of reading and to protect the juvenile’s privacy. -2- court’s determination that Respondent-Mother’s parental rights
in Kayla were subject to termination for neglect, and by failing
to make findings of fact relating to Respondent-Mother’s fitness
to parent Kayla as of the date of the termination hearing.
After careful consideration of Respondent-Mother’s challenges to
the trial court’s order in light of the record and the
applicable law, we conclude that the trial court’s order should
be affirmed.
I. Factual Background
On 2 July 2009, the Mitchell County Department of Social
Services filed a petition alleging that Kayla was a neglected
and dependent juvenile, with the primary basis for this
contention being continuing domestic violence between
Respondent-Mother and Respondent-Father Daron G. On 20 August
2009, the trial court entered an order adjudicating Kayla to be
a neglected and dependent juvenile. On 17 December 2010, DSS
filed a motion to terminate Respondent-Mother’s and Respondent-
Father’s parental rights in Kayla on the grounds of neglect as
authorized by N.C. Gen. Stat. § 7B-1111(a)(1). On 16 August
2011, the trial court entered an order terminating Respondent-
Mother’s and Respondent-Father’s parental rights in Kayla.
Respondent-Mother and Respondent-Father noted appeals to this
Court from the trial court’s termination order. On 1 May 2012, -3- this Court filed an unpublished decision reversing the trial
court’s termination order on the grounds that the trial court
had failed to make “specific, ultimate findings of fact
establishing that [Kayla] was a neglected juvenile” and had,
instead, made findings of fact that were “nearly verbatim
recitations of the allegations contained in DSS’s motion to
terminate [Respondent-Mother’s and Respondent-Father’s] parental
rights,” and remanding this case to the Mitchell County District
Court “for proper findings of fact and conclusions of law which
are supported by those findings of fact.” In re K.B.G., COA11-
1495, 201 N.C. App. Lexis 565, at *6-9 (2012).
A remand hearing, at which the trial court declined to hear
or receive new evidence, was held on 1 October 2012. On 30
October 2012, the trial court entered a remand order terminating
Respondent-Mother’s and Respondent-Father’s parental rights in
Kayla on the grounds of neglect as authorized N.C. Gen. Stat. §
7B–1111(a)(1) and on the grounds that they had left Kayla in
foster care for at least twelve months without making reasonable
progress in correcting the conditions that led to her removal
from the home as authorized by N.C. Gen. Stat. § 7B-1111(a)(2).
Respondent-Mother noted an appeal to this Court from the trial -4- court’s remand order.2 On 20 August 2013, we filed an
unpublished opinion reversing the trial court’s remand order and
remanding this case to the Mitchell County District Court for
the entry of a new order containing adequate findings of fact
and conclusions of law on the grounds that the trial court had
erred by determining that Respondent-Mother’s parental rights in
Kayla were subject to termination pursuant to N.C. Gen. Stat. §
7B–1111(a)(2) given that DSS had failed to allege this ground
for termination in its petition, and that the trial court had
failed to make “specific, ultimate findings of fact to support
its conclusion that grounds existed to terminate respondent
mother’s parental rights based on neglect.” In re K.B.G.,
COA13-160, 2013 N.C. App. Lexis 868, at *16 (2013).
A second hearing on remand, at which the trial court again
refused to hear or receive any additional evidence, was held on
4 November 2013. On the same date, the trial court entered a
second remand order concluding that Respondent-Mother’s parental
rights in Kayla were subject to termination for neglect as
authorized by N.C. Gen. Stat. § 7B-1111(a)(1) and that
Respondent-Mother’s parental rights in Kayla should be
2 As a result of the fact that he did not appeal the trial court’s remand order, the entry of that order effectively terminated Respondent-Father’s parental rights in Kayla. -5- terminated. Respondent-Mother noted an appeal to this Court
from the trial court’s second remand order.3
II. Substantive Legal Analysis
A. Consideration of New Evidence on Remand
In her first challenge to the trial court’s second remand
order, Respondent-Mother argues that the trial court erred by
considering new evidence on remand without allowing her to
present additional evidence herself. More specifically,
Respondent-Mother claims that, after informing the parties that
it would base its order solely upon the evidence presented at
the 12 July 2011 hearing, the trial court took judicial notice
of the entire court file relating to this proceeding,
effectively depriving her of the opportunity to contest the
consideration of portions of the court file that were not
appropriately subject to judicial notice or were incorporated
into the court file after the 12 July 2011 evidentiary hearing.
Respondent-Mother is not entitled to relief from the trial
court’s second remand order on the basis of this contention.
The first problem with this aspect of Respondent-Mother’s
challenge to the trial court’s second remand order is that the
trial court’s initial termination order reflects that DSS 3 A more detailed description of the underlying factual background is contained in the opinion in which we addressed Respondent-Mother’s challenge to the trial court’s first remand order. In re K.B.G., 2013 N.C. App. Lexis 868. -6- “offered Exhibits Numbers 1-14, together with the entire Court
File,” at the 12 July 2011 hearing and that “[t]hese Exhibits
were received without objection.” In other words, contrary to
Respondent-Mother’s contention, the materials in the court file
were, in fact, admitted into evidence at the original
evidentiary hearing. As a result, the trial court did not err
to the extent that it relied on information contained in the
court file as of 12 July 2011 given that the file as of that
date had been admitted into evidence.
Admittedly, any decision by the trial court to consider
information developed and placed in the court file after 12 July
2011 would have been problematic. In support of her contention
that the trial court’s decision was affected by information
developed and included in the court file after 12 July 2011,
Respondent-Mother points to the trial court’s finding that:
[T]he Court finds: (1) the juvenile is now well over five years of age and has spent over four of those years in foster care and DSS custody; (2) that, over the years, the juvenile has established a strong bond with her foster family, and said foster family strongly desires to adopt the juvenile; . . . [and] (5) that the overwhelming weight of the evidence firmly establishes that a strong and loving bond exists between the juvenile and her prospective adoptive parents[.] Thus, the Court finds that her proposed adoption by the current foster parents is in the best interest and welfare of the juvenile[.] -7- We are not persuaded by the language contained in the finding of
fact upon which Respondent-Mother relies that the trial court
did, in fact, consider, much less rely upon, such post-12 July
2011 evidence.
The “presumption in a bench trial is that ‘the judge
disregarded any incompetent evidence that may have been admitted
unless it affirmatively appears that he was influenced
thereby,’” In re H.L.A.D., 184 N.C. App. 381, 395, 646 S.E.2d
425, 435 (2007) (quoting In re L.C., 181 N.C. App. 278, 284, 638
S.E.2d 638, 642 (2007)), aff’d, 362 N.C. 170, 655 S.E.2d 712
(2008), with Respondent-Mother “bear[ing] the burden of showing
that the trial court relied on the incompetent evidence in
making its findings.” Id. (citing In re Huff, 140 N.C. App.
288, 301, 536 S.E.2d 838, 846 (2000), disc. review denied, 353
N.C. 374, 547 S.E.2d 9 (2001)). Respondent-Mother has not,
however, cited us to any specific indication in the second
remand order that the trial court relied upon evidence derived
from portions of the court file developed and filed after 12
July 2011 in making its “best interests” determination. The
trial court’s “best interests” finding, upon which Respondent-
Mother generally relies in support of this argument, appears to
rest on the testimony of Will Winters, a social worker who
testified at the 12 July 2011 hearing that Kayla was “well -8- bonded” to her foster parents and foster brother and that
Kayla’s foster family had “welcomed [Kayla] as just a member of
their family,” updated to reflect Kayla’s age and the length of
time that she had spent in foster care. As a result, given that
Respondent-Mother has failed to show that the trial court relied
upon evidence contained in that portion of the court file that
was developed and filed after the conclusion of the 12 July 2011
hearing in its second remand order, she is not entitled to an
award of appellate relief from that order on the basis of this
contention.
B. Evidentiary Support for the Trial Court’s Factual Findings
Secondly, Respondent-Mother argues that the trial court’s
findings of fact to the effect that Respondent-Mother (1) failed
to comply with her case plan; (2) continued to engage in
domestic violence with the father; and (3) continued to abuse
alcohol lacked sufficient evidentiary support. More
specifically, Respondent-Mother contends that the undisputed
record evidence establishes that the findings in earlier orders
indicate that she was complying with her case plan, that she
would not have been allowed to have unsupervised visitation or a
trial placement if she had been out of compliance with her case
plan, that she had submitted documentary support for her
contention that she was complying with her case plan, that she -9- was not culpable in and had no responsibility for the incidents
of domestic violence in which she had been involved, that no
continuing domestic violence was occurring, and that she was not
continuing to abuse alcohol, so that there was no basis for the
trial court’s ultimate determination that Respondent-Mother’s
parental rights in Kayla should be terminated on the grounds of
neglect. We do not find Respondent-Mother’s argument
persuasive.
“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 Huff, 140 N.C. App. at 291, 536
S.E.2d at 840). A trial court may treat a properly admitted DSS
report as evidence and incorporate the contents of that report
into its order so long as the trial court does not use the DSS
report as a substitute for its own independent review. In re
K.S., 183 N.C. App. 315, 324, 646 S.E.2d 541, 546 (2007); In re
D.L., 166 N.C. App. 574, 582–83, 603 S.E.2d 376, 382 (2004).
After carefully reviewing the record, we believe that the
challenged factual findings have ample evidentiary support and
amply support the trial court’s determination that Respondent- -10- Mother’s parental rights in Kayla were subject to termination
for neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).
Although the record contains prior orders indicating that
Respondent-Mother was complying with her case plan, other orders
entered prior to the filing of the termination petition, such as
the order authorizing DSS to cease attempting to reunify
Respondent-Mother with Kayla, contain findings of fact to the
effect that there had been “no substantial compliance” with
Respondent-Mother’s case plan and that Respondent-Mother had
“failed to obtain all Court ordered treatment, evaluations, and
[has] been in non-compliance with the DSS plan[.]” Similarly,
reports presented by DSS and Kayla’s guardian ad litem note
Respondent-Mother’s refusal “to communicate with [Intensive In
Home] Supervisor or to work with case worker or to visit with
her child” and her sporadic attendance at counseling sessions.
Finally, the trial court was not, contrary to Respondent-
Mother’s contention, required to treat the mental health
assessment upon which she places such emphasis in her brief as
sufficient compliance with the requirement in her case plan that
she obtain a mental health evaluation given the limited
information provided in that assessment or to treat the letters
from four mental health providers to the effect that they were
unable to provide the required evaluation as conclusive given -11- Respondent-Father’s ability to obtain an adequate assessment
during the same period of time. In essence, the prior orders
and other evidence contained in the present record demonstrate
that, after a period in which Respondent-Mother was making
efforts to comply with her case plan, she faltered in that
process and never fully complied with her case plan. As a
result, the trial court did not err by determining that
Respondent-Mother had failed to comply with her case plan.
Secondly, the trial court’s unchallenged findings of fact
reflect that (1) Respondent-Mother continued to be involved in
incidents of domestic violence with Respondent-Father and (2)
that Respondent-Mother engaged in a “pattern of refusing to
testify” against Respondent-Father following the acts of
domestic violence that he perpetrated against her. In addition,
reports submitted by Kayla’s guardian ad litem indicated that
Respondent-Mother had a tendency to “protect” Respondent-Father
from the effects of his violent conduct and stated that
Respondent-Mother “is not showing motivation to choose the
safety of her daughter over the violent relationship with
[Respondent-Father].” In fact, a prior order contained in the
court file noted that Respondent-Father still had a key to
Respondent-Mother’s home. As a result, the trial court’s
findings concerning the existence of continuing domestic -12- violence have adequate evidentiary support and establish that
Respondent-Mother, without having instigated the actions that
Respondent-Father took against her, failed to take adequate
steps to prevent such acts of domestic violence from occurring
or to respond to such acts of domestic violence following their
occurrence in a manner which would have provided protection to
herself and Kayla.
Finally, the record is replete with evidence tending to
show that Respondent-Mother continued to abuse alcohol.
According to multiple DSS reports, Respondent-“Mother need[ed]
to become alcohol free.” In addition, Respondent-Mother’s long-
term alcohol abuse and her relapse into excessive alcohol
consumption were mentioned in her clinical evaluation.
Similarly, a report submitted by Kayla’s guardian ad litem noted
that Respondent-Mother “admits to continuing to abuse alcohol.”
Moreover, the trial court found in a prior order that alcohol
was discovered in Respondent-Mother’s home on 7 September 2010,
when an incident of domestic violence between Respondent-Father
and Respondent-Mother occurred. Finally, despite Respondent-
Mother’s contention to the contrary, the record contains ample
evidence tending to show that Respondent-Mother’s alcohol abuse
could have an adverse impact on Kayla. For example, according
to a report submitted by Kayla’s guardian ad litem, Respondent- -13- Mother and Respondent-Father both stated “that the worst
domestic violence has occurred when [Respondent-Mother] has been
drinking.” Thus, the record contains ample evidentiary support
for the trial court’s findings relating to the effect of
Respondent-Mother’s alcohol consumption. As a result, given
that the record fully supports the challenged findings of fact
discussed in Respondent-Mother’s brief and given that the trial
court’s findings concerning Respondent-Mother’s failure to
comply with her case plan, involvement in domestic violence, and
continued consumption of alcohol provide ample support for the
trial court’s finding that Respondent-Mother’s parental rights
in Kayla were subject to termination for neglect as authorized
by N.C. Gen. Stat. § 7B-1111(a)(1), we conclude that Respondent-
Mother is not entitled to relief from the trial court’s second
remand order on the basis of the contention discussed in this
section of our opinion.
C. Fitness to Parent
Finally, Respondent-Mother contends that the trial court’s
findings of fact did not suffice to support termination of her
parental rights in Kayla for neglect as authorized by N.C. Gen.
Stat. § 7B-1111(a)(1). In support of this contention,
Respondent-Mother argues that, even if the findings that the
trial court actually made had adequate evidentiary support, the -14- trial court was not entitled to terminate her parental rights in
Kayla on the basis of neglect given the absence of sufficient
findings establishing that she lacked the current ability to
parent her daughter. We are not persuaded by Respondent-
Mother’s argument.
As we have already noted, the trial court concluded that
Respondent-Mother’s parental rights in Kayla were subject to
termination for neglect as authorized by N.C. Gen. Stat. § 7B-
1111(a)(1). A “neglected juvenile” is one
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 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). “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). In an
instance, such as this one, in which a child has been removed
from the parent’s custody before the termination hearing and the
petitioner presents evidence of prior neglect in support of its
request for termination of the parent’s parental rights, “[t]he
trial court must also consider any evidence of changed
conditions in light of the evidence of prior neglect and the -15- probability of a repetition of neglect.” In re Ballard, 311
N.C. 708, 715, 319 S.E.2d 227, 232 (1984). In such
circumstances, the neglect determination “must[,] of
necessity[,] be predictive in 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). In the event that the trial court determines that there
is a reasonable probability that the neglect that the juvenile
previously suffered will recur, the trial court has adequately
addressed the “current fitness” issue raised in Respondent-
Mother’s brief.
In its second remand order, the trial court found as fact
that: (1) Respondent-Mother failed to comply with her case
plan, (2) domestic abuse between Respondent-Mother and
Respondent-Father was a continuing problem, and (3) Respondent-
Mother continued to abuse alcohol. In addition, the trial court
found that:
supervised visitations between [Kayla] and Respondent[-Mother], have had a negative behavioral impact upon the child. Specifically, the Court finds that prior to, and shortly after her removal from the care of Respondent[-Mother] and [Respondent- Father], the juvenile had exhibited defiance and other behavioral problems. Further, the Court finds that during periods of supervised visitation with Respondent[- -16- Mother], these pre-removal behavioral problems have again manifested themselves, in that, the child has often emotionally shut down and lain [sic] stiff on the floor.
After noting that Respondent-Mother often missed her supervised
visits with the juvenile, the trial court found that:
Ultimately, the Court finds the testimony of [Mr.] Winters to be very credible, and attaches significant weight to his testimony. Based on said testimony by the social worker, together with the entire Court file, the Court finds that Respondent[-Mother] has neglected the juvenile (as defined by N.C. Gen. Stat. § 7B-101(15)), that she has continued to neglect the juvenile, and there is a likelihood of future neglect if the juvenile is returned to Respondent-[Mother].
Finally, the trial court found as a fact “that the meager and
half-hearted efforts undertaken by Respondent[-Mother] are
insufficient to establish the absence of potential future
neglect of the juvenile should she be returned to Respondent[-
Mother]’s custody and care.” As a result, in light of these
findings, which establish a reasonable basis for believing that
the neglect that Kayla suffered in the past would recur in the
event that she was returned to Respondent-Mother’s care, we
conclude that the trial court adequately addressed Respondent-
Mother’s current fitness to parent Kayla.
III. Conclusion -17- Thus, for the reasons set forth above, we conclude that
none of Respondent-Mother’s challenges to the trial court’s
order have merit. As a result, the trial court’s order should
be, and hereby is, affirmed.
AFFIRMED.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).