In re N.P.

• Court: Supreme Court of North Carolina
• Decided: April 3, 2020
• Docket: 227A19
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 227A19

Filed 3 April 2020

IN THE MATTER OF: N.P.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from orders entered on 13 March

2019 by Judge Christopher B. McLendon, in District Court, Pitt County. This matter

was calendared in the Supreme Court on 25 March 2020 but determined on the record

and briefs without oral argument pursuant to Rule 30(f) of the North Carolina Rules

of Appellate Procedure.

The Graham.Nuckols.Conner.Law Firm, PLLC, by Timothy E. Heinle, for petitioner-appellee Pitt County Department of Social Services.

Parker Poe Adams & Bernstein LLP, by Thomas N. Griffin III, for respondent- appellee Guardian ad Litem.

Parent Defender Wendy C. Sotolongo, by Deputy Parent Defender Annick Lenoir-Peek, for respondent-appellant father.

MORGAN, Justice.

Respondent-father appeals from the district court’s order terminating his

parental rights to N.P. (Nick).1 After careful consideration of respondent’s challenges

1 The minor child N.P. will be referenced throughout this opinion as “Nick,” which is a pseudonym used to protect the identity of the child and to facilitate the ease of reading the opinion. IN RE N.P.

Opinion of the Court

to the district court’s conclusion that grounds existed to terminate his parental rights,

we affirm.

On 19 September 2016, the Pitt County Department of Social Services (“DSS”)

obtained non-secure custody of Nick and filed a petition alleging that he was a

neglected and dependent juvenile. In the petition, DSS alleged that Nick tested

positive for cocaine at birth and that his mother failed to bond with him. In re N.J.P.,

No. COA17-532, 2017 WL 5147343 *1 (N.C. Ct. App. 2017) (unpublished). DSS

further alleged that respondent “had a ‘co-dependent relationship’ with [the mother]

and had ‘served time in prison for Statutory Rape/Sex Offense and Sexual

Exploitation of a Minor.’ ” Id. On 23 February 2017, the district court adjudicated

Nick to be a neglected and dependent juvenile. Id. The Court of Appeals affirmed the

adjudications of neglect and dependency, but reversed the disposition in part. Id. at

*8–9.

On 27 November 2018, DSS filed a petition to terminate the parental rights of

both respondent and Nick’s mother. DSS alleged grounds to terminate respondent’s

parental rights to Nick based on neglect, willfully leaving Nick in foster care for more

than 12 months without making reasonable progress to correct the conditions that

led to Nick’s removal, willfully failing to pay a reasonable portion of the cost of care

for Nick during his placement in DSS custody, and dependency. See N.C.G.S. § 7B-

1111(a)(1)–(3), (6) (2019). On 13 March 2019, the district court entered an order

concluding that grounds existed to terminate respondent’s parental rights based on

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all of the grounds alleged in the petition. On the same date, the district court entered

a separate order in which it concluded that termination of respondent’s parental

rights was in Nick’s best interests.2 Respondent appeals.

Before this Court, respondent argues that the district court erred by concluding

that grounds existed to terminate his parental rights. We disagree.

A termination of parental rights proceeding consists of an adjudicatory stage

and a dispositional stage. N.C.G.S. §§ 7B-1109, -1110 (2019); In re Montgomery, 311

N.C. 101, 110, 316 S.E.2d 246, 252 (1984). At the adjudicatory stage, the petitioner

bears the burden of proving by “clear, cogent, and convincing evidence” the existence

of one or more grounds for termination under N.C.G.S. § 7B-1111(a) of our General

Statutes. N.C.G.S. § 7B-1109(e), (f) (2019). We review a district court’s adjudication

“to determine whether the findings are supported by clear, cogent and convincing

evidence and the findings support the conclusions of law.” In re Montgomery, 311 N.C.

at 111, 316 S.E.2d at 253 (citing In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133

(1982)). If the petitioner meets its burden during the adjudicatory stage, “the court

proceeds to the dispositional stage, at which the court must consider whether it is in

the best interests of the juvenile to terminate parental rights.” In re D.L.W., 368 N.C.

835, 842, 788 S.E.2d 162, 167 (2016) (citing In re Young, 346 N.C. 244, 247, 485 S.E.2d

612, 614–15 (1997); N.C.G.S. § 7B-1110).

2 The district court order also terminated the parental rights of Nick’s mother, but she did not appeal and is not a party to the proceedings before this Court.

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N.C.G.S. § 7B-1111(a)(1) (2019) provides for termination of parental rights

based upon a finding that “[t]he parent has . . . neglected the juvenile” within the

meaning of N.C.G.S. § 7B-101. A neglected juvenile, in turn, is statutorily defined, in

pertinent part, as a juvenile “whose parent, guardian, custodian, or caretaker does

not provide proper care, supervision, or discipline; . . . or who lives in an environment

injurious to the juvenile’s welfare[.]” N.C.G.S. § 7B-101(15) (2019).

Generally, when termination of parental rights is based on neglect, “if the child

has been separated from the parent for a long period of time, there must be a showing

of past neglect and a likelihood of future neglect by the parent.” In re D.L.W., 368

N.C. at 843, 788 S.E.2d at 167 (2016) (citing In re Ballard, 311 N.C. 708, 713–15, 319

S.E.2d 227, 231–32 (1984)). “When determining whether such future neglect is likely,

the district court must consider evidence of changed circumstances occurring between

the period of past neglect and the time of the termination hearing.” In re Z.V.A., 373

N.C. 207, 212, 835 S.E.2d 425, 430 (2019) (citing In re Ballard, 311 N.C. 708, 715,

319 S.E.2d 227, 232 (1984)).

Here, in the order terminating respondent’s parental rights, the district court

found as fact that Nick was adjudicated neglected on 5 January 2017. The district

court then made more than ninety findings of fact relevant to its adjudication of

grounds to terminate respondent’s parental rights on grounds of neglect pursuant to

N.C.G.S. § 7B-1111(a)(1). For example, the district court found that, at the time of

the adjudication, respondent: (1) had never acknowledged any responsibility for his

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May 2001 convictions on fourteen counts of sex offenses against a child and had not

received sex-offender-specific treatment following those convictions; (2) did not timely

complete a court-ordered Sex Offender Specific Evaluation, and when the SOSE was

completed a year after Nick’s initial adjudication as a neglected juvenile, did not

complete the recommended therapy and training; (3) was evaluated in the SOSE as

exhibiting paranoia and actively exhibited paranoia and lack of commitment in his

therapy sessions with two counselors, leading to an unscheduled discontinuation of

both; (4) accused Sheriff Paula Dance of sexually abusing and kidnapping his other

children, accused former Chief District Court Judge Gwen Hilburn of being mentally

ill, and claimed “all parties involved in this proceeding have falsified documents”; (5)

lacked stable housing as required by the district court in that one of the two

residential options that respondent proposed would cause Nick and respondent to live

with a registered sex offender and the second option would involve a prospective

roommate for whom respondent was not able to provide any background information;

(6) planned for said prospective roommate to be a caretaker for Nick and did not

express an understanding of the “safety risk associated with inviting strangers into

his home as potential babysitters,” later “filed for a civil no-contact order against the

roommate after an argument,” and was eventually evicted from the residence; and (7)

had repeatedly complained to DSS that Nick was suffering from physical and mental

ailments from which Nick did not appear to be suffering and had contacted law

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enforcement during a supervised visit to report that DSS social workers were

threatening respondent’s life and Nick’s life. The district court also found that:

69. The Respondent Father’s history of instability, lack of being forthcoming about housing, poor housing and roommate decisions, and the fact that he waited until so long into the case and so soon to this TPR causes the [c]ourt not to find that he has stable housing now.

70. The Respondent Father has not had and does not now have stable housing. The Respondent Father’s frequent relocating, his history of dishonesty and vague responses to questions about his housing, and his refusal or inability to properly vet roommates, contribute to this instability.

...

91. The Respondent Father[’s] inability to consistently follow court orders or work to resolve the issues which brought his child into DSS custody, as well as his history of poor decision-making, demonstrates that he is unable to maintain the juvenile’s health and safety should the juvenile be placed in his care.

92. To place the juvenile with the Respondent Father would place the juvenile in an injurious environment as there have been no changes to the Respondent Father’s mental health issues.

Overall, respondent does not make specific challenges to the district court’s

findings of fact, instead lodging a broadside exception that the evidentiary findings

relating to the ground of neglect are not supported by the record. Such broadside

exceptions, however, are ineffectual, and findings of fact not specifically challenged

by a respondent are presumed to be supported by competent evidence and binding on

appeal. In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d 54, 58 (2019) (“Findings of fact

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not challenged by respondent are deemed supported by competent evidence and are

binding on appeal.” (citations omitted)). Moreover, we review only those findings

necessary to support the district court’s conclusion that grounds existed to terminate

respondent’s parental rights for neglect. Id. at 407, 831 S.E.2d at 58–59 (citing In re

Moore, 306 N.C. at 404, 293 S.E.2d at 133).

Of the findings of fact generally and noteworthily referenced above, the only

findings specifically challenged by respondent which are relevant to the ground of

neglect are Findings of Fact 69 and 70, which relate to respondent’s history of

unstable housing. Respondent contends that these findings of fact were based on

events occurring in the past and do not reflect his status as of the date of the

termination hearing. We disagree, noting that respondent does not challenge any of

the findings which describe his history of unstable housing and poor decisions

regarding housing and roommates. The district court has the responsibility of making

all reasonable inferences from the evidence presented. See In re D.L.W., 368 N.C. at

788 S.E.2d at167–68 (stating that it is the district court judge’s duty to consider all

of the evidence, pass upon the credibility of the witnesses, and determine the

reasonable inferences to be drawn therefrom). The district court could reasonably

infer from the evidence that respondent could not maintain safe housing for any

appreciable period of time and that he lacked the ability to do so in the future. See,

e.g., In re Wilkerson, 57 N.C. App. 63, 68, 291 S.E.2d 182, 185 (1982) (rejecting

respondents’ argument that they had corrected the conditions which led to the

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removal for neglect, indicating that at the time of the termination hearing they were

no longer living in a rat-infested trailer but in a clean five-room apartment, but

ignoring the preponderance of the evidence that they had lived in filthy and

unsanitary conditions until shortly before the termination hearing).

Respondent generally contends that the trial court erred by finding and

concluding that he neglected Nick and that such neglect was likely to reoccur.

Respondent also asserts that he had alleviated the conditions of neglect that led to

Nick’s removal. He further claims that the district court failed to make a specific

finding regarding the probability of repetition of neglect. We are not persuaded.

The district court’s undisputed findings of fact demonstrate that respondent

was convicted for sexually abusing children and denied responsibility for those

convictions; had persistent and serious mental health issues that affected his ability

to parent Nick; and suffers from serious paranoia, impulsivity, and erratic behavior.

The district court further determined that these issues impeded and impacted

respondent’s ability to parent Nick, and that placing Nick with respondent would put

Nick in an injurious environment. Although respondent attempts to portray his

behavior as being protective of Nick, the district court, which had repeated

opportunities to observe respondent, rejected that depiction, and it is not the role of

this Court to substitute its judgment for that of the trier of fact. See, e.g., Scott v.

Scott, 157 N.C. App. 382, 388, 579 S.E.2d 431, 435 (2003) (stating that when the trial

court sits as fact-finder, it is the sole judge of the credibility and weight to be given to

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the evidence, and it is not the role of the appellate court to substitute its judgment

for that of the trial court). Additionally, it is clear that respondent lacked stable

housing until shortly before the termination hearing. Furthermore, despite

respondent’s claims to the contrary, the district court expressly made a specific

ultimate finding that “there is a high probability that a repetition of neglect would

occur in the future if [Nick] were to be placed with the Respondent Father.” The

district court’s findings on this issue are supported by clear, cogent, and convincing

evidence; as a result, we hold that the district court did not err by determining that

grounds existed under N.C.G.S. § 7B-1111(a)(1) to terminate respondent’s parental

rights.

The district court’s conclusion that a ground for termination existed pursuant

to N.C.G.S. § 7B-1111(a)(1) is sufficient in and of itself to support termination of

respondent’s parental rights. In re T.N.H., 372 N.C. at 413, 831 S.E.2d at 62.

Furthermore, respondent does not challenge the trial court’s conclusion that

termination of his parental rights was in the child Nick’s best interests. See N.C.G.S.

§ 7B-1110(a) (2019). Accordingly, we affirm the district court’s order terminating

respondent’s parental rights.

AFFIRMED.

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