In re L.H., I.H.

CourtSupreme Court of North Carolina
DecidedSeptember 24, 2021
Docket501A20
StatusPublished

This text of In re L.H., I.H. (In re L.H., I.H.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re L.H., I.H., (N.C. 2021).

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-110

No. 501A20

Filed 24 September 2021

IN THE MATTER OF: L.H., I.H.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 26

August 2020 by Judge Burford A. Cherry in District Court, Catawba County. This

matter was calendared for argument in the Supreme Court on 19 August 2021 but

determined on the record and briefs without oral argument pursuant to Rule 30(f) of

the North Carolina Rules of Appellate Procedure.

Marcus P. Almond for petitioner-appellee Catawba County Department of Social Services.

Michelle FormyDuval Lynch for appellee Guardian ad Litem.

Jeffrey William Gillette for respondent-appellant mother.

EARLS, Justice.

¶1 Respondent-mother appeals from the trial court’s order terminating her

parental rights to her minor daughters, L.H. (Lucy) and I.H. (Ingrid).1 We affirm.

I. Background

¶2 The record shows that Catawba County Department of Social Services (DSS)

has a long history of involvement with respondent and her children. DSS filed a

1 Pseudonyms are used to protect the identity of the juveniles, as well as their minor

sibling mentioned in this opinion, and for ease of reading. IN RE L.H., I.H.

Opinion of the Court

juvenile petition regarding one-month-old Lucy and three of her older siblings in

December 2005 and then filed a second petition and obtained nonsecure custody of

the children in January 2006.2 Following a hearing on the petitions conducted over

the course of February, March, and April 2006, the trial court entered an order on 7

June 2006 that adjudicated Lucy and her siblings neglected juveniles and granted

DSS custody of the juveniles. The adjudication was based on findings that the

children’s biological father, from whom respondent was divorced, had twice been

convicted of indecent liberties, once for conduct involving two of his sisters and once

for conduct involving another juvenile family member; had engaged in inappropriate

sexual contact with his oldest daughter; and posed a significant risk of further sexual

abuse. The court further found that respondent was aware of the father’s convictions

but did little to protect the children, did not believe the children were at risk, and

refused to agree to prevent the father from further contact with Lucy. Respondent

allowed the children to visit the paternal grandmother’s home despite a history of

inappropriate sexual conduct in the family, left the children in the supervision of an

individual who was involved in an active Child Protective Services (CPS)

investigation, and lived with the children in an unsafe environment. With the father

in prison, respondent made significant progress on her case plan by the time the

matter came on for a review hearing on 27 June 2006, and the children had been

2 Lucy was born in November 2005. Ingrid was born in December 2007. IN RE L.H., I.H.

returned to her care. In the order entered after the review hearing, the trial court

returned custody of the children to respondent.

¶3 Nine years later, on 3 November 2015, DSS filed a juvenile petition alleging

that nine-year-old Lucy, seven-year-old Ingrid, and their fifteen-year-old sister Sarah

were neglected juveniles and obtained nonsecure custody of the children. Following a

hearing in February 2016, the trial court entered an order on 1 March 2016 that

adjudicated the children neglected juveniles based on the following findings: that

respondent and the children were residing with an individual, Charles Fleming, who

had previously been charged with felony indecent liberties with a child and convicted

of assault on a child and had been separately convicted of misdemeanor contributing

to the delinquency of a juvenile; that respondent refused to sign an agreement

specifying there would be no unsupervised contact between Mr. Fleming and the

children and continued to live with Mr. Fleming and leave the children in his care

unsupervised; that respondent admitted to a social worker that Sarah had been

sleeping in the same bed with Mr. Fleming; and that, despite the parties’ denials,

evidence indicated a sexual relationship existed between Sarah and Mr. Fleming. The

trial court granted custody of the children to DSS. Respondent cooperated with

services offered by DSS, and the matter came on for regular review and permanency-

planning hearings until the trial court returned Lucy and Ingrid to respondent’s

custody by order entered 22 May 2018. IN RE L.H., I.H.

¶4 On 18 March 2019, DSS filed the most recent juvenile petition alleging

thirteen-year-old Lucy and eleven-year-old Ingrid were abused and neglected

juveniles and obtained nonsecure custody of the children. The petition alleged that

respondent’s boyfriend, Johnny Gortney, who was also a caretaker for the children,

had inappropriately touched Ingrid “both over and under her clothes on her ‘boobs’

and genital area, using his hands and fingers[,]” on more than one occasion between

August and December 2018; and he had inappropriately touched Lucy “over her

clothes on her ‘boobs’ with his hand” on more than one occasion in November 2018.

Following a hearing on 22 April 2019, the trial court entered an order on 23 May 2019

that adjudicated Lucy and Ingrid abused and neglected juveniles based on findings

that were consistent with the allegations in the petition. The trial court ordered that

DSS retain custody of the children and that respondent comply with a case plan with

requirements to complete an updated psychological evaluation, a parenting

assessment, a non-offending parenting program, individual counseling, and therapy

with the children. The court allowed respondent weekly supervised visitation with

the children but ordered Mr. Gortney not to have contact with the children.

¶5 In an order entered on 29 August 2019 following a 29 July 2019 permanency-

planning hearing, the trial court set the primary permanent plan for the children as

reunification and the secondary plan as adoption. The court’s findings indicated

respondent was availing herself of services, but the court expressed concern that IN RE L.H., I.H.

respondent had not proven capable of protecting the children from sexual abuse by

members of their household despite CPS’s long history of involvement with the family

and the extensive services provided. The court specifically identified respondent’s

failure to demonstrate that she could keep her children safe from risk as a barrier to

reunification.

¶6 Following the next permanency-planning hearing on 21 October 2019, the trial

court entered an order on 22 November 2019 that changed the primary permanent

plan for the children to adoption with a concurrent secondary plan of reunification

and guardianship. The change in the permanent plan was based, in part, on the

results of respondent’s psychological evaluation reassessment, which indicated “the

combination of [respondent’s] mental health and cognitive limitations result[ed] in

her inability to effectively and safely parent and protect her children” and that “it

[was] not likely that any service provided to [respondent] could significantly alter her

inability to parent and protect her children.” The court further found the results were

validated by its own history with and observation of respondent. Specifically, the

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