In re L.F.G.K.

• Court: Court of Appeals of North Carolina
• Decided: July 15, 2014
• Docket: 14-115
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-115 NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

IN THE MATTER OF:

L.F.G.K. and A.L.K. Cleveland County Nos. 09 JT 128; 10 JT 125

Appeal by respondent parents from order entered 28 October

2013 by Judge Meredith A. Shuford in Cleveland County District

Court. Heard in the Court of Appeals 30 June 2014.

Charles E. Wilson, Jr. for petitioner-appellee Cleveland County Department of Social Services.

Leslie Rawls for respondent-appellant mother.

Mercedes O. Chut for respondent-appellant father.

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

ELMORE, Judge.

Respondent parents appeal from an order terminating their

parental rights to their minor children, L.F.G.K. (“Linda”1) and

A.L.K. (“Anna”). Respondent father also appeals from a prior

1 Pseudonyms are used to protect the identity of the juveniles and for ease of reading. -2- order ceasing reunification efforts. We affirm the order

terminating respondent’s parental rights.

The Cleveland County Department of Social Services (“DSS”)

became involved with respondent mother in January 2009, when it

filed juvenile petitions alleging her minor children J.K. and

B.K.2 were abused and neglected juveniles. Linda was born to

respondents in June 2009, and the day after her birth DSS took

non-secure custody of her and filed a petition alleging she was

a neglected juvenile. On 23 November 2009, respondents entered

into a consent order of adjudication in which Linda and her

older siblings were adjudicated neglected. The trial court

entered a combined disposition, review, and permanency planning

order on 4 January 2010, in which it continued custody of Linda

and her siblings with DSS and set the permanent plan for the

children as reunification with their parents.

In August 2010, respondent mother gave birth to Anna.

Shortly after her birth, DSS took non-secure custody of Anna and

filed a petition alleging she was a neglected juvenile. The

trial court entered an adjudication and disposition order on 22

February 2011, adjudicating Anna a neglected juvenile and

continuing custody of her with DSS. The court also relieved DSS

2 Respondent father is not the father of J.K. and B.K. -3- from its obligation to make reasonable efforts to return Anna to

respondents’ home. That same day, the trial court entered an

order regarding Linda and her older siblings in which it awarded

the custody of Linda’s siblings to their father, released DSS

from its obligation to make reasonable efforts to return Linda

to respondents’ home, and set the permanent plan for Linda as

adoption. On 24 February 2011, the court entered an order

setting the permanent plan for Anna as adoption. Respondents

appealed from the trial court’s orders entered 22 and 24

February 2011, and this Court affirmed all three orders. In re

J.K., 216 N.C. App. 416, 716 S.E.2d 875 (2011).

On 5 March 2012, by the agreement of all parties, the trial

court entered a permanency planning and review order in which it

sanctioned a permanent plan for Linda and Anna of reunification

with respondents, with a concurrent plan of adoption. The court

ordered DSS to resume making reasonable efforts to return the

children to respondents’ home, granted respondents supervised

visitation with the children, and ordered respondents to

cooperate with DSS’s reunification efforts. DSS worked with

respondents toward reunification with their children. However,

by order entered 22 January 2013, the trial court ordered

reunification efforts to cease, terminated respondents’ -4- visitation with the children, and set the permanent plan for the

juveniles as adoption. Respondents filed timely notices to

preserve their right to appeal from the 22 January 2013 order

ceasing reunification efforts.

DSS filed petitions to terminate respondents’ parental

rights to Linda and Anna on 11 February 2013. DSS alleged

grounds of neglect, failure to make reasonable progress toward

correcting the conditions that led to the removal of the

children, and failure to pay a reasonable portion of the cost of

care for the children. N.C. Gen. Stat. § 7B-1111(a)(1)-(3)

(2013). On 28 October 2013, after a multi-day hearing, the

trial court entered an order terminating respondents’ parental

rights to Linda and Anna, based upon the grounds of neglect and

failure to make reasonable progress toward correcting the

conditions that led to the removal of the children. Respondents

filed timely notices of appeal.

II. Analysis

We first address respondents’ common argument that the

trial court lacked jurisdiction to hear the petitions to

terminate their parental rights because DSS failed to include in

the petitions a statement of facts sufficient to warrant a -5- determination that one or more of the grounds for terminating

parental rights existed.

A petition to terminate parental rights must include

“[f]acts that are sufficient to warrant a determination that one

or more of the grounds for terminating parental rights exist.”

N.C. Gen. Stat. § 7B-1104(6) (2013). “While there is no

requirement that the factual allegations be exhaustive or

extensive, they must put a party on notice as to what acts,

omissions or conditions are at issue.” In re Hardesty, 150 N.C.

App. 380, 384, 563 S.E.2d 79, 82 (2002). “Merely using words

similar to the relevant statutory ground for termination is not

sufficient to comply with N.C. Gen. Stat. 7B-1104(6).” In re

H.L.A.D., 184 N.C. App. 381, 392, 646 S.E.2d 425, 433-34 (2007),

aff’d, 362 N.C. 170, 655 S.E.2d 712 (2008).

We agree with respondents that the petitions to terminate

their parental rights lack statements of facts in support of any

grounds for termination. Nevertheless, this deficiency is not

jurisdictional and instead constitutes a claim for relief under

Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.

In re Quevedo, 106 N.C. App. 574, 578, 419 S.E.2d 158, 159

(1992). Respondents never moved for a dismissal under Rule

12(b)(6) in the trial court, and “a Rule 12(b)(6) motion may not -6- be made for the first time on appeal.” In re H.L.A.D., 184 N.C.

App. at 392, 646 S.E.2d at 434. Accordingly, respondents have

failed to preserve this issue for appellate review. Respondent

mother presents no other arguments for our review, and we

therefore dismiss her appeal.

Respondent father also argues that the trial court erred in

ceasing reunification efforts. Respondent father contends three

of the trial court’s findings of fact in support of its

conclusion to cease reunification efforts with him are not

supported by record evidence. Respondent father’s arguments are

misplaced.

Our review of orders ceasing reunification efforts “is

limited to whether there is competent evidence in the record to

support the findings [of fact] and whether the findings support

the conclusions of law. The trial court’s findings of fact are

conclusive on appeal if supported by any competent evidence.”

In re L.M.T., 367 N.C. 165, 168, 752 S.E.2d 453, 455 (2013)

(citations and quotation marks omitted).

Respondent father specifically argues that in the trial

court’s 22 January 2013 order ceasing reunification efforts,

findings of fact 13, 22, and 23 are unsupported by any record

evidence. In these findings, the trial court stated: -7- 13. That although the parents have received [] liberal three-hour weekly visitation since March, 2012, the parents have failed to demonstrate an ability to re-direct the children; and failed to demonstrate the ability to provide appropriate meals and snacks on a consistent basis.

. . . .

22. That the respondent parents have been resistant to complete all of the recommended services. The parents refused to meet with a budget counselor; and refused to meet with a nutritionist, which would have been at no cost to the parents. That when requested, the parents stated that they have already done these things, although they have not demonstrated these skills.

23. That the respondent parents have not demonstrated to the Court that they have improved their situation, and have not demonstrated to the Court their ability to provide a safe and stable residence or that they will be able to do so within a reasonable time.

These findings of fact are fully supported by both the testimony

of Sharon Moore, a social worker assigned to the juvenile case,

and her report to the trial court. In turn, these findings,

coupled with the trial court’s unchallenged findings that a safe

return of the juveniles to respondent’s home was not likely

within the next six months and that further reunification

efforts would be futile, support its conclusion to cease -8- reunification efforts. Accordingly, we affirm the trial court’s

order ceasing reunification efforts with respondent father.

Respondent father additionally argues the trial court erred

in concluding that grounds existed to terminate his parental

rights. We first address respondent father’s arguments

regarding the ground of neglect.

Grounds exist to terminate parental rights where the parent

has neglected the juvenile such that the court finds the

juvenile to be a neglected juvenile within the meaning of N.C.

Gen. Stat. § 7B-101. N.C. Gen. Stat. § 7B-1111(a)(1) (2013). A

neglected juvenile is defined in part as 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 is not provided necessary remedial care; or who lives in

an environment injurious to the juvenile’s welfare[.]” N.C.

Gen. Stat. § 7B-101(15) (2013). Generally, “[i]n deciding

whether a child is neglected for purposes of terminating

parental rights, the dispositive question is the fitness of the

parent to care for the child ‘at the time of the termination

proceeding.’” In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d

236, 242 (2005) (quoting In re Ballard, 311 N.C. 708, 715, 319 -9- S.E.2d 227, 232 (1984)). However, “[w]here, as here, a child

has not been in the custody of the parent for a significant

period of time prior to the termination hearing, the trial court

must employ a different kind of analysis to determine whether

the evidence supports a finding of neglect.” In re Shermer, 156

N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (citations

omitted). A trial court may terminate parental rights based

upon prior neglect of the juvenile if “the trial court finds by

clear and convincing evidence a probability of repetition of

neglect if the juvenile were returned to her parents.” In re

Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).

“Relevant to the determination of probability of repetition of

neglect is whether the parent has made any meaningful progress

in eliminating the conditions that led to the removal of [the]

child[].” In re J.H.K., 215 N.C. App. 364, 369, 715 S.E.2d 563,

567 (2011) (citation and quotation marks omitted).

Here, Linda and Anna had previously been found to be

neglected juveniles, and the trial court made numerous findings

of fact regarding respondent father’s failure to make any

meaningful progress in his case plan, which evince a probability

of repetition of neglect if the children were returned to his

care. After over three years of working with DSS toward -10- reunification, the court found respondent father had not

developed a significant bond with Linda or Anna. Respondent

father was often disengaged from the children during visits,

failed to assist the mother with parenting during the visits,

and had to be prompted by the supervising social worker to

interact with his children. The court found respondent father

would occasionally demonstrate appropriate parenting skills

after direction from the social worker, but would not be able to

demonstrate the same skills just a week or two later without

prompting from the social worker. Respondent father also failed

to comply with recommended treatment services, including budget

and nutrition education or counseling, asserting that he had

previously received the services and they were unneeded, even

though DSS determined that respondents were struggling

financially, falling behind in their bills, and not providing

appropriate food or snacks for the children. Ultimately, after

visiting with respondents, the children began displaying

oppositional behavior outside of the visits, and Linda needed

counseling for dealing with anxiety that she developed from the

visits. The court further found that respondent father had not

demonstrated an ability to take Anna to the therapy and medical

appointments she required due to her speech apraxia, or even had -11- an understanding of her disorder. Additionally, the court found

respondent father had failed to provide a safe and sanitary home

for the juveniles, and continued to fail to acknowledge any

responsibility for the reasons why Linda and Anna were in the

custody of DSS.

The trial court’s findings are either unchallenged by

respondent father, and thus binding on appeal, Koufman v.

Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991), or are

supported by record evidence. We hold these findings support

the trial court’s conclusion that grounds exist to terminate

respondent father’s parental rights based on his past neglect of

his children and the probability of repetition of that neglect

if Linda and Anna were returned to his care. We reject

respondent father’s contention that the trial court’s conclusion

is founded solely upon their poverty, as throughout the history

of this case respondents rejected assistance offered by DSS to

alleviate the impact of their financial hardships. Similarly,

there is no evidence suggesting that respondent father’s recent

employment ameliorated the conditions underlying the court’s

findings suggesting a probability of repetition of neglect.

Accordingly, we hold the that trial court did not err in

concluding grounds existed to terminate respondent father’s -12- parental rights to Linda and Anna pursuant to N.C. Gen. Stat. §

7B-1111(a)(1). As such, we need not address his arguments

regarding the trial court’s conclusion that grounds to terminate

his parental rights also existed under N.C. Gen. Stat. § 7B-

1111(a)(2). In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241,

246 (2005), aff’d per curiam, 360 N.C. 360, 625 S.E.2d 779

(2006) (holding that when “the trial court finds multiple

grounds on which to base a termination of parental rights, and

an appellate court determines there is at least one ground to

support a conclusion that parental rights should be terminated,

it is unnecessary to address the remaining grounds”). Respondent

father does not challenge the trial court’s conclusion that it

is in the children’s best interests to terminate his parental

rights, and we thus affirm the trial court’s order terminating

the respondent father’s parental rights to Linda and Anna.

Dismissed in part, affirmed in part.

Chief Judge MARTIN and Judge HUNTER, Robert N., concur.

Report per Rule 30(e).